Parliamentary Sovereignty

The tradition notion of sovereignty does present a number of difficulties if attempts to understand it are made in a modern context. Firstly, the ‘external independence’ clause cannot be conceived fully within the construct of an international legal order. Its ‘internal coherence’ renders the state fully centralised, when in reality an increasing number of formerly unitary states are choosing to devolve and pluralise. Lastly, the tradition belief of a supreme and overriding authority awarded to the sovereign is hard to reconcile with a modern and democratic concept of transparency and accountability.

 

Loughlin’s definition of sovereignty

It is the juristic stance of Loughlin’s exposition of sovereignty that allows him to skirt around the subject of the European Union and hence provides a basis for the rejection of his position when regarding the sovereignty of the UK in light of EU membership.  Sovereignty is defined as a relation and as a highly politicised discourse between ruler and the ruled - it is this relationship that is the ‘essence of the modern state’. Loughlin presents two facets of sovereignty; the institutional ‘official’ power (understood as competence and authority), and the ‘public’ political product of the dynamic between the sovereign and its subjects (to be taken as capacity and power). Therefore, any formal expression of rule ‘derives its power from a political relationship between a government and its subjects’.  He subscribes, in part, to the Bodin school that asserts that full sovereignty is the only method successful in sustaining order and hence outlines sovereignty as indivisible, ‘sovereignty divided is sovereignty destroyed’. The logic of this claim rests on the argument that, for the majority of modern states, a formal constitutional framework is instituted to define the competences of the three branches of government. Although this constitutional framework may distribute certain legislative authority to federal units, this action cannot be deemed to divide the sovereignty itself as once this is done, none remains at all. The distribution represents an ‘explication’ of powers; merely a more detailed description coordinating the practicalities of ruling a federation. There is also confusion when ascertaining the exact locus of power and of people with the framework of the European Union. If effective control is only possible where the relationship between the citizen and the sovereign is clearly defined, where does that leave the EU?

MacCormick also couches the concept of sovereignty in the language of a relationship; between the law and the state. The law is said to be both the precondition required for the state to develop as well as the explicit expression of the state;

‘The complexity of the organisation that characterises the modern state is intelligible only in the light of a formidable body of public law authorising people to act and investing their acts with the quality of being valid state-actions. But if you ask what is the real substance that lies behind the legal framework…the question seems unanswerable’

His analysis of sovereignty is developed through examination of recent constitutional events in the UK. Sovereignty is being challenged in the UK from both internal and external forces. Having been a member of the European Community since 1972, the UK now faces the exercise of legal authority by the European Parliament and the European Court of Justice (ECJ) in addition to adhering to a very recent policy of devolution implemented by the Labour government. Although MacCormick questions the future of the UK’s paradigmatic model and asks what is left of Parliamentary sovereignty, in contrast to Loughlin, he does not assert that sovereignty has disappeared altogether. It is argued that in order to maintain sovereignty at the centre and act receptively to citizens’ interests, a portion of sovereignty must be transferred elsewhere – upwards to the EU or downwards to regional assemblies. It is recognised, however, that the traditional notion of sovereignty has changed in response to the more significant challenge of EU integration. Indeed, MacCormick claims that “post-sovereignty” now exists, allowing for more significant interpretations of democracy and subsidiarity.

Constitutional Issues

With the doctrine of Parliamentary Sovereignty in mind, it can be questioned whether the UK government in 1972 was actually endowed with the authority to make the concession and adopt the European Communities Act – which afforded the incorporation of EC law into the domestic legal system;

‘All such rights, powers, liabilities, obligations…arising by or under the treaties to be given legal effect…and shall be recognised and available in law and be enforced and followed accordingly.’

 This act constituted a relinquishment of political and legal authority and it is not clear that the constitution of the UK, albeit unwritten and highly open to interpretation, allows for an action of this magnitude or nature. MacCormick presents a dual understanding of the sovereignty of parliament doctrine. The ‘unrestricted and general power to enact valid law’ involves both the rule of recognition and the rule of change. The former ‘establishes criteria for identifying which rules are valid members of the legal system maintained by the legal officials whole roles are regulated by rules of adjudication and rules of change’, acknowledgment of the validity and supremacy of Parliamentary acts and the validity of their application by the judiciary. The aforementioned rule of change is purposeful in the indication of the law-making bodies that hold the power to change the law, hence it ‘concerns Parliament's power of change… According to the doctrine in question this is a power conferred by common law, the power being unrestricted’. If it is accepted that this principle of Parliamentary Sovereignty both recognises those with authority to make and enforce law and allows for changes made to be endowed with the same legitimacy, then the adoption of the European Communities Act 1972 allowed European legislation to override the British constitution in selected areas – initially those concerned with trade and industry. MacCormick upholds that ‘the 1972 Act made a valid change in the rule of recognition, as it purported to do, but with the implied condition that Parliament retained its power to reverse the change’, so although the UK now recognised an external legislative body, future Parliaments were not bound by this change as the second rule is reserved; ‘there is an implicit condition that it could repeal section 2(1) and 2(4) [the sections that recognize and give supremacy to European Community legal obligations] if in the future it should choose to do so.’. In theory, therefore, sovereignty is not destroyed, even if it has been divided. It is the practical limitations, however, that constrain the future Parliaments and MacCormick describes how these take the form of legal or political restrictions.

Limitations

It is the Factortame v Minister of Transport case that fully exemplifies the challenges presented to the UK by the ‘special kind of new legal order’ that has arisen out of Community law and demonstrates the ‘profound constitutional consequences’ of such a decision. Although the ECJ protects UK economic interests by enforcing EU law and therefore ensuring a level playing field in the single market, in this case, the doctrine at the heart of British sovereignty was contested. At the centre of this highly controversial debate was the Merchant Shipping Act 1988 that imposed restrictions on foreign ships, and more specifically designed to deter and expel quota-avoiding Spanish fishermen from UK waters, which was in violation of EC law. The Spanish fishing company Factortame appealed against these restrictions, citing EC law as their supporting condition. The House of Lords, following a ruling from the European Court of Justice that gave national courts the power to strike down any laws that breached EC law, were forced to rule in favour of Factortame and were disabled by the Community to enforce valid UK law. MacCormick questions the state of the sovereignty of Parliament doctrine in light of this decision as the highest court in land is recognising a directive that has not originated from Parliament. However, it can be argued that although this case confirmed the supremacy of Community law over UK law, it actually confirmed the legal sovereignty of domestic law. That is, if the UK Parliament voted with a majority to repeal the European Communities Act and leave the EU, there would be no legal barriers. However, a consequence of this case was that ‘later UK legislation inconsistent with governing European law must be “disapplied” to the extent of the inconsistency’. This view is reinforced by the former Lord Chancellor, Lord Irvine, in a speech given to the US Supreme Court in Washington, 1998, when he argued that the Factortame case;

‘…does not impair the ultimate sovereignty of Parliament, because, in giving effect in this way to Community law, the courts are simply heeding Parliament’s intention – as expressed in the legislation which facilitated British membership of the Community – that European law should take priority.’

It is also possible to present a case that recognises the erosion of political sovereignty, in view of the Factortame debate. Although it is shown that legal withdrawal by the UK of the EU is possible, it is also very unlikely considering how politically entangled the UK is in the EU;

‘Politically and economically, there are powerful reasons deterring states from large-scale unilateral defiance of Community norms or (a fortiori) unilateral renunciation of membership (which would clearly be invalid as a matter of Community Law, though possibly valid or subject to being validated by the law of member states).’

The UK reputation as loyal and secure would be irrevocably ruined and any future trade or diplomatic associations would be effectively impossible. However, it should also be noted that it is not a supranational authority that has no affiliation with the member states that decides Community law. Instead, elected and non-elected representatives from each member state coordinate the implications of treaties and accepted norms; ‘European law is not foisted on the states from without, it is elaborated between states and Community in a collaborative and interactive manner’. The Factortame case illustrates the redundancy of the traditional ‘Westphalian’ definition of sovereignty and although it continues to be an important part of political rhetoric, ‘both judicially and practically, state regulatory capacities have ceased to meet the criteria of sovereignty’, causing the task to be directed elsewhere. For the UK, however, the dilemma was, and remains, ‘how to reconcile the principles of Common law with the doctrine of parliamentary sovereignty’. It is ‘ultimately a choice between theoretical sovereignty and practical effectiveness. Traditionally the British are a practical people’.

Ultimately, however, MacCormick’s conclusions on a ‘post-sovereign’ Europe do hold weight;

‘Externally, a state is sovereign if the exercise of power internally to the state is not subject to external superior power or to other constraints or restrictions legal in nature.’ 

With this in mind, and the outcome of the Factortame case, it seems clear that the UK is no longer a fully sovereign state. Sovereignty is not destroyed however and, depending on the stance from which the EU is regarded, it is possible to clearly chart where the divisions occur.

Conflicting models of the EU

The division or erosion of UK sovereignty can be characterised very differently through the application of conflicting models of the EU. The two positions are as follows; (i) that there is something ‘fundamentally new’ about the EU and can be described as sui generis, its legal order being ‘neither international law nor domestic state law’ or (ii) that the EU is merely a manifestation of sovereign states behaving collectively under international law and member states are ‘devoted to improving their socio-economic conditions which does not involve any permanent or irrevocable transfer of sovereignty’.

The first position, advanced primarily by MacCormick, derives it authority from the decision made in the Van Gend en Loos v. Nederlanse Administratie der Belastingen case which found that EC regulations were to be tried in national courts as the regulations themselves had a direct effect on citizens of member states, on private legal persons and not solely on member state obligations, and therefore constituted a new European legal order. A form of social contract is drawn up as member states have limited rights in certain areas of decision. In addition to the legal aspect, territorial observations can also be made. Those that support this stance ‘claim that territory in Europe is being redefined and reconstituted, away from the states and towards the EU’ as is evidenced by the gradual breakdown of internal borders to foster the unrestricted movement of goods, services, persons and capital. However, the application of direct effect on member state substantive law is universal and cannot be partially employed. The ECJ set this precedent in its ruling on the case of Commission v UK in which it was decided that any member state must implement EU regulations ‘in their entirety’ and can even go so far as to order a change in law if the state is found to be relentlessly noncompliant.  MacCormick supports this notion of full acceptance and rejects any form of piecemeal approach to EC regulation application, as it would be unrealistic to attempt to sustain a common market with equal social and environmental rights if ‘partial denunciation or revocation’ occurred. However, despite the logic of this position, it cannot be contested that the UK has suffered some rearrangement, in this instance, of sovereign authority as ‘there is not so much as a sharing of sovereignty as a mutual acknowledgement of coordinate jurisdiction between the EU and its member states in certain policy areas where the states used to enjoy exclusive jurisdiction’. Loughlin’s claim of division equalling destruction, although grounded in classical theory, does not withstand a change in the concept of sovereignty in the European arena.

The international law model challenges the claims of lost sovereignty as the states themselves have not been forced into a predetermined arrangement but instead have each authorised the evolution of the institutions by proxy of their involvement. The international treaties and agreements, in particular pacta sunt servanda, signify the EU as fully subordinate to the member states, ‘joint property’, and as ‘the child and not the parent or even the sibling of its member states’. This is exemplified in the strict adherence to external borders and the existence of external alliances between member states and non-member states, most notably NATO. In terms of foreign and military policy, the EU does not have an agreed position and contemporary dialogue on the matter remains unresolved. The desire by some states within the European Union to strengthen their external capabilities as an organisation is a controversial issue as sovereignty is often expressed in terms of control over one’s policing and defence. The development of universal European foreign policy infers a far closer union that held currently. However, the consignment of the common foreign and security policy to the ‘second pillar’ of the EU ‘means that foreign policy coordination falls outside the rules for supranational governance that apply to economic integration’ and excludes the ECJ and the European Parliament from ruling on this matter. This decision can be attributed to the desire by the member states to ‘preserve an intergovernmental mode of decision-making for the sensitive and symbolic area of foreign policy-making’ and the recognition that;

‘…responsibility for maintaining peace could not be allocated to a higher, federal authority without fatally damaging the entity which it was designed to protect, namely the state itself.’

It is also worth considering conceptualising sovereignty in economic terms. Keohane’s contention that ‘sovereignty is economic in character’ and can be viewed simply as a ‘bargaining resource’ is strongly rejected by advocates of the former models. Jackson disputes this claim on the grounds that the states that agree to enter the euro zone are choosing to exercise their sovereignty in a specific way. Although it is true that certain policy considerations make withdrawal difficult, states are not prohibited from withdrawing and Jackson posits that to couch sovereignty in fiscal language confuses the concept. Instead, it would be preferable to discuss ‘the difficulties that independent governments face in trying to pursue nationalist economic policies in a rapidly integrating global economy’. Jackson’s defence of sovereignty as a status and not as a resource contributes to the comprehension that the UK has not blindly handed away centuries of independence. Instead, careful considerations have been made that allow the UK to ‘participate and to engage in relations and to make agreements with other sovereign states’.

Conclusions

The traditional Dicean view of British parliamentary sovereignty, upon which Loughlin builds his understanding, fails spectacularly to accommodate for the partial, and very specific, surrender of sovereignty to the EU. It is crucial to note that in many very significant areas, sovereignty still remains fully in the hands of the British government, and in light of vocalised public opinion, seems set to remain there. Loughlin’s recognition of both the ‘legal and the political conceptions of sovereignty’ do go some way in explaining the necessity for different interpretations of the concept, but is rendered somewhat inadequate in a discussion regarding the EU.

There are many mutual benefits for the ‘pooling’ and sharing of national sovereignty and should be regarded not solely in terms of single market creation. Divided sovereignty also creates a community that is linked together by mutual and reciprocal bonds, helping to promote a shared bank of ideals – the continuation of a liberal democratic ethos. In light of the events of the 20th century, a body that fosters mutual respect and dependence cannot be viewed negatively. Therefore, sovereignty divided is not sovereignty destroyed, a position advocated by MacCormick and others, and the challenges faced are not a result of the end of sovereignty but are caused by the difficulties faced in developing a new concept of sovereignty that comfortably accommodates the modern European order.

BIBLIOGRAPHY

Alder, J. (2002) General Principles of Constitutional and Administrative Law. Basingstoke: Palgrave Macmillan.

Bellamy, R. & Castiglione, D. (1997) ‘Building the Union: The nature of Sovereignty in the Political Architecture of Europe’, Law and Philosophy. Vol. 16, No. 4, pp 421 – 445

Christiansen, T. (2001) ‘European and Regional Integration’ in Scholte, J. A. (ed) Globalisation of World Politics. Oxford: Oxford University Press.

Dicey, A. V. (1902) Introduction to the study of the Law of the Constitution. London: Macmillan and Co.

Irvine (1998), National Heritage Lecture  ‘Constitutional Change in the United Kingdom – British solutions to universal problems’ (www.dca.gov.uk/speeches/1998/washlec.htm)

Jackson, R. (1999) ‘Sovereignty in World Politics: a glance at the conceptual and historical landscape’, Political Studies, Vol. 47, No. 3, pp 431 – 456

Keohane, R. O. (1995) ‘Hobbes's Dilemma and Institutional Change in World Politics: Sovereignty in International Society’ in Hans-Henrik Holm and Georg Sorensen, (eds), Whose World Order? Uneven Globalization and the End of the Cold War. Boulder: Westview.

King, A. (2001) Does the UK still have a Constitution? London: Sweet & Maxwell.

Loughlin, M. (2004) The Idea of Public Law. Oxford: Oxford University Press.

MacCormick, N. (1999) Questioning Sovereignty: Law, State and Nation in the European Commonwealth. Oxford: Oxford University Press.

MacCormick, N. (2004) A Union of its Own Kind? Reflections of the European Convention and the Proposed Constitution of the European Union.

Niblock, M. (1971) National Parliaments in Community Decision-Making. London: Chatham Press.

Norton, P. (1996) National Parliaments and the European Union. London: Frank Cass.

 

Scholte, J. A. (2001) Globalisation of World Politics. Oxford: Oxford University Press.

Taylor, P. (2001) ‘Sovereignty and the competence of international organisations’ in Scholte, J. A. (ed) Globalisation of World Politics. Oxford: Oxford University Press.

---