Parliamentary sovereignty and EU renegotiation

The national and parliamentary sovereignty discussion has tended to focus on the powers of the unelected European Commission to propose legislation, the gradual erosion of the national veto in the Council of Ministers, the primacy of EU law over national law, the obligation to amend or repeal national laws as a result of EU Court rulings, and the need for a greater role for national parliaments in the decision-making process.

The European Act 2011 contained a so-called ‘sovereignty clause’ confirming that ultimate legal authority remains with the UK Parliament rather than the EU. It made statutory the common law principle of the sovereignty of Parliament. In a written statement to Parliament, David Lidington said of the clause in the Bill:

The EU Bill places on a statutory footing the common law principle that Parliament is sovereign and that EU law only takes effect in the UK by virtue of the will of our Parliament expressed through Acts of Parliament. To date, case law has upheld that principle. This Bill will put the matter beyond speculation by placing this principle on a statutory footing. The provision is declaratory, affirming this common law principle. It does not alter the existing relationship of EU law and UK law.

Some legal experts regard the sovereignty clause as no more than a symbolic reaffirmation of the common law principle that a statute has no impact in the UK unless or until it is embodied in an Act of Parliament. Others thought it had value even though, strictly speaking, it did not change anything.

The preservation of parliamentary sovereignty has been firmly linked to the ability of national parliaments to object to or reject European Commission proposals. Since the Lisbon Treaty, two protocols have provided national parliaments with a mechanism for objecting to Commission proposals in accordance with the principle of subsidiarity. The EU Treaty also guarantees a role for national parliaments in Article 12 of the Treaty on European Union. The Lisbon Treaty provisions were intended to strengthen political dialogue with an early warning mechanism of orange and yellow card procedures which in theory gave national parliaments more power. In practice these have been something of a blunt instrument. The yellow card threshold has been reached rarely and has lacked real influence and the orange card has not been achieved at all, so they have not been seen as mechanisms that can affect the legislative process.

The UK Government has consistently maintained that an enhanced role for national parliaments in the EU decision-making process would make it more democratic and pledged to make this one of the aims of its EU reform agenda.

The Government raised the idea of a ‘red card’ to veto unwanted EU proposals in 2013: a given number of national parliaments should be able to block Commission initiatives. In his letter to the President of the European Council, Donald Tusk, in November 2015, David Cameron asked for a new arrangement whereby groups of national parliaments, acting together, could stop unwanted legislative proposals. The precise threshold of national parliaments required would be a matter for the negotiation.

Donald Tusk’s draft proposals to tackle the UK’s sovereignty concerns reinforced respect for subsidiarity and proposed that Member States discontinue the consideration of a draft legislative act where a number of national parliaments object to it on subsidiarity grounds.