UK sovereignty and EU law

UK sovereignty

“Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that.”  White Paper, Exit From Europe, Feb 2017 – page 13.

The UK was a sovereign nation as an EU member.  Sovereignty means a nation’s ability to take its own decisions and, if it wishes, reverse them. In joining the European Economic Community, the UK decided to pool some of its sovereignty with the other sovereign nations to gain mutual benefits. In doing so, the UK believed it could achieve its national objectives better through the greater power, influence and prosperity that cooperation with other European nations would bring.

Since joining in 1973, the UK, as a major EU economy, had a strong influence over EU development, policies and legislation (for example the development of the Single Market and financial services regulation). As an EU member, the UK had also agreed with most EU legislation:

• At the EU level, the UK voted for proposals 97% of the time (2004 – 2015). In other words, the UK voted for the vast majority of EU legislation.
• In terms of the total volume of EU laws passed, the UK was on the “losing side” about 2% of times since 1999. However, in the later years the UK had been losing a higher proportion of votes than other members states.

British opposition to EU policies occurred especially on budget, foreign policy and foreign aid issues. However, the British public’s perceptions of the EU were often misinformed (see section on Democratic deficit?). Like politicians in other member countries, British politicians often blamed the EU to deflect attention from themselves, but it was only the UK that caused the European Commission to create a blog to repudiate tabloid euromyths.

Sources: Full Fact and LSE, Simon Hix, Sara Hagemann, Doru Frantescu: Would Brexit matter? The UK’s voting record in the Council and the European Parliament, April 2016.

EU and member state competences

The EU treaties define the competencies of the EU which describe what policies and laws may be determined at EU level and what at member-state level. As the table below shows, the EU exclusively determines law in a minority of areas. Member states determine laws for most policy areas, either on their own or jointly with the EU.

Sources: Europa, EU competences; EU law; Chatham House

Types of EU law

The European Union is based on the rule of law. This means that every action taken by the EU is founded on the treaties that have been approved voluntarily and democratically by all EU member countries. For example, if a policy area is not cited in a treaty, the Commission cannot propose a law in that area.

A treaty is a binding agreement between EU member countries. It sets out EU objectives, rules for EU institutions, how decisions are made and the relationship between the EU and its member countries.

The treaties may be amended to make the EU more efficient and transparent, to prepare for new member countries and to introduce new areas of cooperation – such as the single currency.

They are the starting point for EU law and are referred to as primary law. The body of law that comes from the principles and objectives of the treaties is known as secondary law. These include legislative and non-legislative acts. The EU legislature comprises the European Parliament and the Council of the European Union, which, under the Treaties, may establish secondary law to pursue the objectives set out in the Treaties.

EU laws become binding on member states who must change their national laws to avoid conflicts. There are five types of legislative acts:

• regulations
• directives
• decisions
• recommendations
• opinions

Regulations are legal acts that are binding in their entirety. They are directly and uniformly applicable to all EU member states as soon as they enter into force, without needing to be transposed into national law. The Commission is the main source of regulations.

Directives set binding objectives upon EU member states to achieve a certain result, but leave them free to choose how to achieve these objectives. Once adopted at EU level, EU member states must adopt measures to incorporate the directive into national law (transpose). 

Decisions are binding legal acts that either may be of general application or may have a specific addressee. Decisions are often non-legislative acts adopted, generally but not exclusively, by the European Commission, following delegation (delegated acts) or to implement a legislative act (implementing act).

Recommendations are non-binding. They allow the EU institutions to make their views known and to suggest a line of action without imposing any legal obligation on those to whom it is addressed.

Opinions are non-binding. They allow the EU institutions to make a statement, without imposing any legal obligation on the subject of the opinion.

Source: European Commission

How much UK law came from Brussels?

In summary, although the figure is not helpful, EU obligations accounted for somewhere between 13% and 55% of UK law.

The figure is not helpful because counting laws and regulations does not give a good measure of EU influence on the UK. A better approach would be to consider the areas where EU law has exclusive competence under the treaties, such as trade, agriculture and fisheries. In other important areas of UK policy—for example, welfare and social security, education, criminal law, family law and the NHS—the EU had very limited direct influence.

In 2015, the House of Commons Library concluded that the UK generated 87% of UK law from 1993 to 2014 (in other words, 13% came from Brussels). They based this on Acts of Parliament and Statutory Instruments that reflected EU obligations: 4,514 out of a total of 34,105 or 13%. (The study updated an earlier 55-page HOCL Research Paper published in 2010, which was incredibly thorough.) These figures exclude EU regulations, which, when included, increased the estimate to 55% of UK law.

The Commission implements regulation, often for administrative or technical purposes, that flows from EU law and the regulations apply automatically in all member states. However, the 55% figure overstates the impact because it includes, for example, EU regulations that the UK would have implemented anyway, many minor EU regulations that did not apply to the UK or that no-one would have noticed because they had an immaterial impact. In addition:

• It treats all EU regulations as part of the UK’s body of laws even when they may not apply to the UK (e.g. in relation to Schengen) or simply do not have any real impact on the UK (e.g. in relation to tobacco production or olive oil).
• Fewer laws remain in force than the number passed. Many EU regulations only apply for a short time. For example, there are daily new regulations on fruit and vegetable imports into the Single Market that apply for days.

Sources: House of Commons Briefing Paper 07092, 10 June 2015, EU obligations: UK implementing legislation since 1993

FullFact, UK law: What proportion is influenced by the EU?, June 2016

Unanimity

All EU countries, when meeting within the European Council, have to vote unanimously on matters which the member states consider to be sufficiently sensitive. In other areas, qualified majority voting (QMV) applies. Other matters require a simple majority.

Unanimity is required for:

• Common foreign and security policy (except for certain clearly defined cases which require qualified majority, e.g. appointment of a special representative);
• Citizenship (the granting of new rights to EU citizens);
• EU membership (accession of new countries or withdrawals);
• EU trade agreements;
• Harmonisation of national legislation on indirect taxation;
• EU finances (own resources, the multiannual financial framework);
• Certain provisions in the field of justice and home affairs (the European prosecutor, family law, operational police cooperation, etc.);
• Harmonisation of national legislation in the field of social security and social protection.

Unanimity means that each member state has a veto. For example, some states (such as Austria and Cyprus) have said that they would veto Turkey’s accession to the EU (currently suspended due to the Erdogan regime’s actions). In another example, Spain effectively had a veto over the future relationship between Gibraltar and the EU after the UK left the bloc.

Example: constitutional rules for approving a European Army

• Each member state would have to approve its participation unilaterally (that is, EU could not force a member state to join the army);
• National institutions would need to ratify the decision (for the UK, this means Parliamentary approval);
• Under the European Act 2011, a national referendum in the UK would be needed to approve a European Army.

Source: European Council, voting system
Michael Dougan, Professor of European Law and Jean Monnet Chair in EU Law, at the University of Liverpool

Subsidiarity and proportionality

The principle of subsidiarity applies to EU actions. It means that the EU only acts where EU-wide action will be more effective than at national level (examples might be the Single Market, or environmental measures). Unless the treaties give exclusive powers to the EU, it is a judgment made for each new law.

National parliaments monitor the correct application of this principle in EU decision-making. They are able to express their views on draft legislative acts as well as on other matters of particular interest to them. To enable parliaments to carry out subsidiarity checks, the Commission sends draft legislation to national parliaments at the same time as to the EU legislature (the European Parliament and the Council).

Since 2006, the Commission has been transmitting all new legislative proposals to national parliaments, and has replied to their opinions. From 2009, the Lisbon Treaty clearly sets out the EU rights and duties of national parliaments.

The other key principle is proportionality – the content and scope of EU action may not go beyond what is necessary to achieve the objectives of the treaties.

There are several safeguards to ensure that, wherever possible, the national level takes decisions rather than European level. These include existing ‘yellow card’ and ‘orange card’ measures. The proposed red card measure was agreed in Cameron’s package, but was not implemented because of Brexit.

Figure 2.1 National safeguards

Source: Fullfact, Explaining the EU deal – the ‘red card’, February 2016