British Parliamentary Sovereignty In 1885 As Parliament example essay topic

How has British Sovereignty been compromised by membership of the European Union The word sovereignty itself means the legitimate location of power of last resort over any community. It may be defined purely in legal terms as the power to make binding laws which no other body can break. It may be viewed as the autonomous power of a community to govern itself, a territorial concept relating to the powers of independent nation states. A.V. Dicey defined British Parliamentary Sovereignty in 1885 as Parliament has the right to make or unmake any law whatsoever, and that no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament. This has often stood out as the linchpin of the British Constitution and Hood Philips, a twentieth century constitutional lawyer called it the one fundamental rule of the British Constitution Parliamentary sovereignty was effectively negated in 1973 when Britain joined the European Union which has injected a whole new judicial dimension into the constitution of Britain.

This meant that the British parliament lost legal and legislative sovereignty both de jure and de facto (both in theory and practise) in areas where European law took precedence. The loss of sovereignty seems to have increased since 1973 with the growing scope of European intervention and with the reforms of the voting procedures. One of the key reforms was the change from unanimous voting in the Council of Ministers so any one country could veto any policy, to Qualified Majority Voting, under the Single European Act 1986. For example, in 1993 Britain was over ruled on the principle of a 48-hour working week. Britain held a national referendum on continuing membership of the then EC in 1975. This was merely advisory technically and so in theory Parliaments sovereignty was not affected.

Parliament could not ignore the result and so Parliaments freedom to leave the EU at any time it pleased became difficult and unlikely. This may have a good effect however as the EU laws cannot be ignored and so this helps to reduce the risk of a elective dictatorship or single party majority within a sovereign parliament, e.g. forcing the government to reform pensions law and rights for part time workers. Under the terms of membership of the European Union if there is a conflict between provisions of the European law and United Kingdom law then the European Law is to prevail. So Britain has essentially lost its ability to create its own laws. The 1972 European Communities Act stated that any dispute over the interpretation of Community treaties, and the laws under them was to be treated as a matter of law. Under the provisions of the Treaty of Rome cases which reach the highest domestic court of appeal (House of Lords) must be referred to the European Court of Justice for a final ruling.

There is also no appeal against the ECJ and the courts powers have further been extended by the Maastricht treaty. So the effect of membership of the EU has therefore been to give a new role to the British courts and to introduce a new dimension in the form of the ECJ. The courts have however enjoyed a more powerful position and this new position was shown by the Factortame case. In 1993 the then European Communities Community introduced new fishing quotas in order to prevent overfishing in European waters.

But Britain decided to put a stop to a practise known as quota hopping where by fishing quotas were plundered by vessels flying the British flag but which had no genuine link with Britain. Under the Merchant ship act 1988 vessels registered as British had to satisfy conditions of nationality, residence and domicile. Factortame Ltd. and other companies owned 95 fishing vessels which failed to satisfy one or more of the conditions as they were managed or controlled from Spain or by Spanish nationals. They challenged the legality of the 1988 Act on the grounds that it contravened European Law. The case reached the highest court of appeal, the House of Lords which ruled in 1990 that if the validity of British statute is to be challenged by the European Court, the balance may prevent the government enforcing statute pending the European Court's decision, even if that is contrary to the interests of British citizens.

In 1991 the European Court of Justice ruled that the conditions laid down by legislation for the registration of fishing vessels must comply with community law. Provisions in the 1988 Act were seen discriminatory and contrary to article 52 of the EEC treaty. The ruling of the Factortame case struck at the principle of British Parliamentary Sovereignty. The E.C.J. in effect said that the British courts did have the power to set aside Acts passed by Parliament. This power was implicit in terms of membership accepted by Britain, but it was now being made explicit. The 1997 Amsterdam Treaty added a new employment chapter and provided a base for the gradual introduction of many other common policies.

More limitations were therefore being put on British sovereignty. Britain appears to have lost much control over many areas of economic policy such as agriculture, tariffs and trade. With power being diverted from home ministers to foreign ministers. This means a large proportion of new legislation comes from the EU, around 60% in all. The EU also would appear to have a clear influence on the Prime Minister as at the 1998 European Council summit Tony Blair moved clearly to the left on issues of increased spending for jobs and growth and on common defence, foreign and security policies. In conclusion it is clear that membership of the European Union has effected one of the principle elements of the British constitution, the principle of parliamentary sovereignty which has been challenged and somewhat overrun by the new dimensions created by membership.

It is clear that now there is a shifting of the balance of power away from Britain and a reliable indicator is the fact that many British pressure groups such as the National Farmers Union are now based in Brussels. Also many British authorities now have offices in Brussels in order to maintain contacts. If Britain had not joined the EU it would have been left behind the other major powers in Europe as it had to join the common market in order to stay in touch economically. Britain may also have a dictatorship style government without the constraints of the EU, and EU law has protected some civil liberties against British law such retirement ages and employment rights.

British sovereignty has been compromised but a better more rigid system has been put in its place.