The UK’s uncertainty around sovereignty is likely to get worse as the EU referendum approaches

The negotiations around the UK’s position in the EU have raised questions around the idea of UK sovereignty, which are only likely to get more complicated domestic measures on sovereignty can also be expected in the near future. Mike Gordon unpicks some of the key debates that are currently ongoing, and assesses the potential legal and constitutional implications of government proposals that draw on the sovereignty rhetoric.

Credit: European Council CC BY-NC-ND 2.0

The sovereignty strand of the renegotiation of the UK’s position in the EU was always likely to raise challenges. This is, in part, because ‘sovereignty’ itself is a contested idea: it can mean different things to different people in different contexts, and may raise different considerations depending on the perspective from which it is confronted. This is also, however, a consequence of the varied nature of the demands which the government associated with sovereignty in its negotiations with the President of the European Council and the governments of fellow EU Member States over the terms of the UK’s future membership.

The two most significant components of the sovereignty ‘basket’ – reframing Treaty claims regarding the UK’s commitment to ‘ever closer union’, and the introduction of ‘red card’ veto powers exercisable by a group of national parliaments – engage with the notion of sovereignty in quite different ways, if at all. The phrase ‘ever closer union’ itself has assumed a symbolic role in the UK government’s attempts at renegotiation: an anxiety about the future sovereignty of the UK as a nation state has been projected onto these three words, notwithstanding the fact that, even at present, they clearly do not commit the UK to inevitable absorption into a federal EU, with the possibility of differentiated membership increasingly well established in practice. While the objection to ‘ever closer union’ is therefore, at best, reflective of deeper (but also somewhat intangible) concerns about diminishing state sovereignty in an increasingly globalised (legal) world, attempts have been made to link the requested veto powers for national parliaments with the more specific UK constitutional doctrine of parliamentary sovereignty. Yet, properly understood, the idea of parliamentary sovereignty – a constitutional doctrine which affords a law-making power which is legally unlimited to the UK Parliament – is not obviously engaged here. Instead, requests for a ‘red card’ mechanism are better understood as concerning (and seeking to extend) the power and influence of the UK Parliament over EU policy. The doctrine of the sovereignty of the UK Parliament, in contrast, concerns the location of ultimate constitutional authority, and would not be diminished by any failure to create an EU level collective veto for national legislatures (desirable though this may be as a matter of democratic principle).

Regardless of how (or indeed, whether) sovereignty is actually engaged in these specific UK demands, from a practical perspective, both have been largely addressed in the proposals released by Donald Tusk on 2 February 2016. If agreed at a European Council summit on 18 and 19 February 2016, the (still draft) Decision of the Heads of State or Government would recognise that the UK is not committed to further political integration (and at an appropriate future moment, the treaties would be amended to reflect this), while also introducing a ‘red card’ mechanism triggering the discontinuation of a legislative act if 55% of national parliaments objected on grounds of subsidiarity.

Nevertheless – perhaps inevitably, given the difficulty in tying a whole range of claims about sovereignty to these two issues – uncertainty about sovereignty does not seem to have abated (see, for example, this backbench debate on the very topic in the House of Commons on 4 February 2016). Rather, it has been further fuelled by the recent confirmation of David Cameron that domestic measures on sovereignty can also be expected, running in parallel to the (potential) conclusion of the renegotiation with EU partners.

There appear to be two elements to the government’s plan to reinforce sovereignty at a domestic level. First, the Prime Minister confirmed on 3 February 2016 that he was ‘keen to do even more to put it beyond doubt that this House of Commons is sovereign’. It has been reported that this may involving legislating to make clear that the supremacy of EU law within the UK has been established, and could be withdrawn, by Parliament. Second, there appears to be parallel consideration of whether a UK court (or similar body) might be vested with powers to assess whether EU legislation is within, or has exceeded, the competence of the institutions under the treaties. As the Secretary of State for Justice, Michael Gove, stated in evidence to the House of Lords EU Justice Sub-Committee on 2 February 2016, it is a ‘live question’ in government as to ‘whether or not our Supreme Court should be encouraged, facilitated, legislated, to become a constitutional court similar to the German constitutional court, and therefore have the capacity to say that in certain areas the European Union’s legislation ran counter to certain basic British freedoms’.

It is easy to dismiss the first of these proposals as legally nonsensical. The sovereignty of Parliament, so goes the argument, is unaffected by any reaffirmation in statute, for the doctrine is itself the source of Parliament’s authority to legislate. Moreover, even if it were legally significant, all of this has happened before – as David Cameron himself noted in the Commons when promising to explore further action, the European Union Act 2011 was enacted by his coalition government to confirm that the effect of EU law within the UK derived from the domestic legislative authorisation contained in theEuropean Communities Act 1972. Why, therefore, must it happen again?

Yet perhaps this is to dismiss the prospect of some ‘Parliamentary Sovereignty Act’ a little too easily. Despite being pre-sold as a ‘sovereignty clause’, what became section 18 of the EU Act 2011 actually makes no explicit mention of sovereignty, instead simply reiterating the established constitutional position (following the decision of the House of Lords in Factortame (No. 2)) that the effect of EU law within the UK depends on the EC Act 1972. There is, therefore, space for the government to go beyond the technical legalism of section 18, and make some grander rhetorical gesture as to the enduring fundamental significance of parliamentary sovereignty, or (more radically) to formalise in law an explicit process by which the UK Parliament may unilaterally exercise its legislative authority to depart from its EU obligations, in full or in particular circumstances. Such a power would be intensely controversial and difficult (if not essentially impossible) to exercise, but as a matter of domestic constitutional law, this would simply be to give statutory form to a power which already exists in principle if we continue to accept the doctrine of parliamentary sovereignty, and thus the susceptibility of the EC Act 1972, either in full or in part, to express repeal.

Ultimately – and this will only be confirmed when further details become available – the government may simply be using legislation to make a symbolic constitutional point, something which is very much in vogue (see also the planned statutory recognition of the permanence of the Scottish institutions, and the Sewel convention, in the Scotland Bill 2015-16). Yet symbolism is an important part of constitutional law, and if the government wishes to do no more than spend legislative time affirming a matter which is already well known (again) – no doubt motivated by party political considerations – it is at least leaving domestic constitutional fundamentals untouched.

The same cannot be said about the government’s second (potential) proposal, however, which raises a range of concerns, many of which are discussed in Jeff King’s excellent post. The difficulties become especially apparent when this proposal is framed in a sovereignty narrative. It is highly doubtful that re-branding the UK Supreme Court as a ‘constitutional court’, or indeed creating a constitutional court afresh, would serve better to protect the UK from potential EU legislative overreach. The UK Supreme Court – which, of course, is already the final court of appeal in cases raising constitutional issues – has already made tentative suggestions that it might be entitled to refuse to apply EU legislation which clashed with fundamental domestic constitutional principles in the HS2 case. While these claims may themselves be questionable (for reasons I have explored elsewhere), it is far from evident that the Supreme Court needs to be prompted or reconfigured by the government to adopt a slightly bolder approach in cases where EU law may push up against UK constitutional principles (it is also, incidentally, a case which contains, in the joint judgment of Lords Neuberger and Mance, more than a little judicial posturing aimed at the Court of Justice of the European Union, which is not constitutionally dissimilar from a legislative assertion of parliamentary sovereignty, yet seems to have been the subject of less critical comment).

The fundamental difficulty with this proposal, however, is that it seems to suggest that domestic courts must be empowered to protect parliamentary sovereignty. This borders on the contradictory, and at best might appear to indicate that the UK Parliament is not capable of identifying circumstances in which EU law interferes fundamentally with a domestic constitutional principle, or that it would be unable to decide how to proceed in such an exceptional situation. To contract-out this activity to the courts might appear to depoliticise such issues, but this is likely to be illusory, and in practice would simply remove Parliament from the decision-making process at what (if a clash between EU law and fundamental principles of the UK constitution were ever to occur) would be an immensely important constitutional moment.

It may be that this proposal, too, is largely about symbolism over substance, or that it is wrapped up with the government’s (supposedly) soon to be published proposals for a British Bill of Rights – it may be that the government has come to believe that a repackaged domestic constitutional court might feel less constrained by the effects, where applicable, of the EU Charter of Fundamental Rights. Yet if new jurisdiction and power is to be given to the UK courts (new or existing) in the name of protecting the already-protected parliamentary sovereignty, at a time when the courts are already showing interest in exploring the potential ‘limits’ to this constitutional doctrine, the government is in danger of implementing a self-defeating solution to a non-problem.

Much of this stems from the government’s overarching uncertainty about sovereignty – their proposals appear to sacrifice domestic (and democratic) parliamentary sovereignty on the altar of expediency, in what is likely to be a futile attempt to bolster the sovereignty of the UK as a nation state against external actors. That the government does not seem to appreciate that it is trading off one (internal constitutional) conception of sovereignty against another (external international) conception is all the more concerning, and suggests that these proposals ought to be comprehensively reassessed before they have even been announced. Symbolic legislative declarations of parliamentary sovereignty, or the formalisation of a statutory veto process that already (in principle) exists are at least not constitutionally incoherent (although the more radical statutory articulation of a veto power, even aside from its potential future exercise, might be viewed as a provocation by the EU institutions and Member State governments with whom the Prime Minister has been engaged in negotiations on the other aspects of his ‘sovereignty’ agenda). Yet to empower a domestic ‘constitutional court’ to make decisions about whether EU law is compatible with fundamental principles of the UK constitution would seem to undermine, rather than in any sense reinforce, the doctrine of parliamentary sovereignty.

Far from putting the position ‘beyond doubt’ as the referendum on EU membership approaches, the UK’s uncertainty about sovereignty may be about to get much worse.

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This blog originally appeared 11 February on the UK Constitutional Law Association blog with the title ‘The UK’s Sovereignty Uncertainty’ and is reposted with permission. It develops themes initially discussed in a paper presented at the Liverpool European Law Unit’s conference ‘From UK Renegotiation to EU Referendum – A Critical Assessment’, funded by the ESRC ‘UK in a Changing Europe’ project. The post represents the views of the author and not those of Democratic Audit UK, nor the LSE. Please read our comments policy before posting.

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Dr Mike Gordon is Senior Lecturer in Law, University of Liverpool