As a matter of fundamental UK constitutional law, the UK Parliament is sovereign. The UK constitutional mechanism whereby the EU treaties have effect in UK law and why the EU institutions are able to pass legislation that directly affects the UK is through the European Communities Act 1972 – the UK parliamentary statute which recognises the doctrine of EU law supremacy and incorporates it into UK domestic law. Large areas of UK domestic law remain subject to the exclusive jurisdiction of the UK courts and legislature.
EU law is necessary for the EU to function properly. For example, the single market needs EU law so that all companies and consumers – including those based in the UK – can sell and buy products and services across the EU on an equal footing. Thus, the sale of chemicals or pesticides (for example) produced in the UK in accordance with the relevant EU legislation, cannot be prohibited by other EU countries. UK citizens and businesses can enforce their EU legal rights in the courts.
The principles of direct effect and the supremacy of EU law within its scope were well known features of Community law before the UK joined in 1973. They had been established in a series of cases before the Court of Justice in the 1960s and were clearly stated in the European Communities Act 1972.
While there has been some recent discussion of the possibility that UK law could be amended to reflect the traditional doctrine of the sovereignty of parliament, that would not affect the principle of supremacy of EU Law in cases where a state is a member of the EU or (like the EEA states) agrees to be bound by EU Law. In addition, as a matter of fundamental UK constitutional law, such a change is unnecessary, given that the doctrine of parliamentary sovereignty (a concept of the UK’s Common Law tradition) is not affected by the supremacy of EU Law.
In practice, the UK has had significant influence over the development of single market legislation particularly in relation to telecoms, energy and financial services where EU legislation is largely based on the UK model. In other areas, notably pharmaceutical regulation and competition law, UK legislation is closely modelled on EU law. That would remain the case even if the UK were to leave the EU but the UK would cease to have any influence over the future development of that law.
Indeed, if the UK were to leave the EU, it would have no real say on EU legislation, but much of its business would remain subject to EU law in order for UK products and services to be accepted in other EU countries.
Importantly, in those areas where the UK has objected to EU laws on key issues such as immigration and the role of the British currency, the UK has secured opt outs so that it can control its borders and keep the pound. In addition, the recently agreed Settlement contains new safeguards to protect non-Eurozone countries, including the UK, from discrimination by Eurozone member states in the single market. Importantly, these provisions ensure that the UK, and other non-Eurozone member states, will not be required to fund eurozone bailouts.
The Settlement also contains a provision stating that EU Treaty “references to ever closer union do not apply to the United Kingdom” so that the UK is not committed to further EU political integration.
(a) When can the EU legislate?
EU law-making is limited by three fundamental principles. The basic rule is “Europe where necessary, national where possible”;
- Conferral of powers. This principle limits the EU to action on areas that are specifically defined in the EU Treaties.
- Subsidiarity. This principle limits the EU to taking action that cannot sufficiently be achieved by the Member States, and is better achieved by the EU. For example, those environmental issues which are transnational by nature, such as air or sea pollution, are dealt with by the EU. However, matters which are better dealt with at national level, such as soil pollution, are left to Member States to regulate, should they so choose.
- Proportionality. This principle prevents the EU from taking action that goes beyond what is necessary to achieve the objectives of the EU Treaties. For example, a proposal regarding a CAP aid scheme for the provision of fruit and milk in schools was withdrawn by the Commission partly on proportionality grounds.
Any UK citizen or business who is directly affected by EU legislation can challenge that legislation or EU administrative action before the UK courts for breach of these principles. The UK courts have power to refer (in some cases must refer) questions of interpretation of EU legislation to the Court of Justice which gives rulings in response to the national courts’ questions. The Court of Justice’s rulings on EU Law are then applied by the national courts in the context of the facts of the challenge, but in a way that respects the national legal traditions of a Member State. The UK itself has the power to take direct action against the Council or EU Parliament or the Commission in the Court of Justice for that kind of alleged breach.
In addition, EU legislation and action based on EU law must respect the limits on the powers of the EU institutions and national authorities imposed by the protection of fundamental rights and the general principles of EU law, including non-discrimination, legal certainty and the rights guaranteed by the European Convention on Human Rights. The Court of Justice is the guardian of the ‘rule of law’ within the EU and has frequently upheld challenges to legislation and administrative decisions brought by individuals and businesses.
(b) How does the EU legislate?
The European Commission, EU Council, and European Parliament can pass legislation that affects all EU countries including the UK, subject to the limitations identified above. All three institutions have democratic foundations and are accountable in different ways. In particular, the UK Government is closely involved in the preparation and adoption of EU law, and the UK Parliament and citizens both play a significant role in EU law-making.
EU legislation is proposed by the European Commission (following lengthy consultations with stakeholders and EU member state governments) and generally adopted under a process (known as the “ordinary legislative procedure”) which requires approval by both the EU Council (consisting of representatives of national governments) and the European Parliament.
(c) What influence does the UK Government have on EU legislation?
The UK Government influences EU legislation at all stages of the legislative process.
- UK civil servants engage in detailed negotiations with their counterparts from other EU countries on the draft legislation before it is adopted by the EU Council and Parliament.
- The UK Government influences EU legislation through its role in the EU Council, the institution that represents the governments of EU Member States and which votes on EU legislation. The UK can veto some laws, including foreign affairs, taxation, justice and the EU budget. Other laws require three other countries to vote against or abstain to be blocked. The UK’s share of the vote in the EU Council is 13%.
- Where the EU does take action, the UK Government tends to agree with the overwhelming majority of proposals. According to research by Votewatch Europe, the UK Government voted in favour of 90.7% of all EU Council of Ministers Decisions between July 2009 and June 2012. In practice, many Council decisions are made by consensus after negotiation, so voting statistics do not provide a complete picture.
- The UK Government’s role in the EU Council is scrutinized by the UK Parliament, which seeks “to hold UK ministers to account, to ensure that their objectives are clearly stated, and that they have taken the views of Parliament fully into account before going to Brussels to negotiate on behalf of the UK in the Council”. All agendas, minutes, and outcomes of EU Council meetings (that feature deliberation on draft European legislative acts) must be sent to the UK Parliament.
(d) What influence do UK citizens have on EU legislation?
The UK public also plays a role:
- The UK public has access to all draft legislation on the websites of the EU institutions. The UK electorate influences EU legislation by electing members of the European Parliament.
- The European Parliament is composed of representatives of the EU’s citizens. The UK public elects almost 10% of all Members of the European Parliament (MEPs) (73 out of 751), the third highest number together with Italy, behind France (74) and Germany (96), proportionate to the countries’ respective populations. The MEPs adopt legislation with the Council.
(e) What influence does the UK Parliament have on EU legislation?
The UK Parliament can review draft EU legislation at an early stage.
- The European Commission and Parliament are obliged to forward all draft legislation to the UK Parliament for review. Members of the UK Houses of Lords and Commons regularly engage with MEPs on policy. The House of Lords EU Select Committee is particularly active and influential, and engages in frequent dialogue with the EU institutions through a representative based in Brussels.
- The UK Parliament can object to proposed EU legislative action early in the legislative process under the so-called “yellow card” and “orange card” procedures. Whilst a number of parliamentary challenges have been made, none so far, has succeeded in draft EU legislation being withdrawn.
- However, the recently agreed Settlement introduces a new “red card” procedure – if 55% of national parliaments agree, the Council will discontinue the consideration of the draft legislation. This effectively amounts to a veto.
- See, e.g., Case 26/62 van Gend & Loos  ECR 1 – http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:61962CJ0026&from=EN; and Case 6/64 Costa v. ENEL  ECR 585 – http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:61964CJ0006&from=EN.. ↑
- See, e.g., http://www.bbc.co.uk/news/uk-politics-eu-referendum-35539860 ‘EU referendum: Cameron’s options for enhancing sovereignty’, 10 February 2016. ↑
- Indeed, a recent study concluded that the UK appears to be the best of all Member States in the EU Council at wielding significant influence – S. Hix, UK Influence in Europe Series: Is the UK at the top table in EU negotiations?, LSA Blog, 16 November 2015 – http://blogs.lse.ac.uk/europpblog/2015/11/16/uk-influence-in-europe-series-is-the-uk-at-the-top-table-in-eu-negotiations/. ↑
- Protocol 20 to the TFEU contains the opt-out from the prohibition of internal border controls. This authorises the UK to maintain border controls on persons seeking to enter the UK from other Member States. The protocol allows the UK and Ireland to maintain the Common Travel Area. It also allows other Member States to impose equivalent border controls on persons entering their territories from the UK and Ireland – http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012E%2FTXT ↑
- Protocol 15 to the TFEU contains the single currency opt-out. This recognises that the UK is under no Treaty obligation to adopt the single currency and that a separate decision to do so would be required by the UK government and parliament – http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012E%2FTXT. ↑
- European Council, European Council meeting (18 and 19 February 2016) – Conclusions – Section A: Economic Governance, EUCO 1/16, Brussels, 19 February 2016, page 12-15 – http://www.consilium.europa.eu/en/meetings/european-council/2016/02/euco-conclusions_pdf/.
- The settlement negotiated by the Prime Minister at the European Council meeting held on 18 and 19 February 2016 is set out in Annexes to the Conclusions issued by the Council.A question has been raised as to the enforceability of the proposed settlement, and in particular whether it is subject to the approval of the Court of Justice of the European Union.
In addressing this question, we note the following points:
- The only express condition of the Conclusions and the annexed Decision of the Member States is that the United Kingdom should remain a member of the EU.
§ 3(ii) and (iii) of the Conclusions state that the Decision is legally binding, compatible with the existing Treaties, and that it can only be amended or repealed by the common consent of the Member States, thus including the UK.
- The task of the CJEU is “to ensure that in the interpretation and application of the Treaties, the law is observed”.The Agreement between the Heads of State and Government is an international treaty. If and when it comes into effect, it will be part of “the law” to be observed.
- The Agreement will come into effect when the UK decides to remain a Member State of the EU.
- We can see no basis on which the Court could declare the Agreement invalid. It is important to stress that the Court could not, in any event, pronounce on the validity of the Agreement other than in the context of an action and after hearing full argument from Member States and the Institutions of the Union. We can see no basis on which they would argue that the Agreement is invalid.
- The Agreement provides for the Commission to prepare secondary legislation to give effect to certain aspects of it. Such legislation would require to be passed by the normal procedure, and could be challenged by an individual, company or rm only if it affected them individually and directly. This could happen only after the secondary legislation came into effect and was applied to them. Even if successful, that challenge could not invalidate the Agreement – only a specific provision of the secondary legislation.
- The only express condition of the Conclusions and the annexed Decision of the Member States is that the United Kingdom should remain a member of the EU.
- “Emergency and crisis measures designed to safeguard the financial stability of the euro area will not entail budgetary responsibility for Member States whose currency is not the euro, or, as the case may be, for those not participating in the banking union.Appropriate mechanisms to ensure full reimbursement will be established where the general budget of the Union supports costs, other than administrative costs, that derive from the emergency and crisis measures referred to in the first subparagraph.” – European Council, European Council meeting (18 and 19 February 2016) – Conclusions – Section A: Economic Governance, EUCO 1/16, Brussels, 19 February 2016, page 14 – http://www.consilium.europa.eu/en/meetings/european-council/2016/02/euco-conclusions_pdf/. ↑
- European Council, European Council meeting (18 and 19 February 2016) – Conclusions – Section C: Sovereignty, EUCO 1/16, Brussels, 19 February 2016, page 16 – http://www.consilium.europa.eu/en/meetings/european-council/2016/02/euco-conclusions_pdf/. ↑
- Article 5(3) TEU. This principle excludes areas where the EU enjoys “exclusive competence” – http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0013:0045:en:PDF. ↑
- HM Government, Review of the Balance of Competences between the United Kingdom and the European Union – Subsidiarity and Proportionality, paragraph 2.10 – https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/388852/BoCSubAndPro_acc.pdf. ↑
- Article 5(4) TEU – http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0013:0045:en:PDF. ↑
- See European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Commission Work Programme 2015 – A New Start, COM(2014) 910 final – http://ec.europa.eu/atwork/pdf/cwp_2015_en.pdf. ↑
- For the so-called ‘Copenhagen criteria’ for the requirements in respect of the ‘rule of law’ for Member States wishing to join the EU, see http://eur-lex.europa.eu/summary/glossary/accession_criteria_copenhague.html?locale=en; for the role of the Court of Justice in this respect, see Article 263 TFEU and Thomas von Danwitz, The Rule of Law in the Recent Jurisprudence of the ECJ, 37 Fordham Int’l L.J. 1311 (2014). ↑
- Article 294 TFEU – http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012E%2FTXT. See also European Parliament, Codecision and Conciliation, December 2014 – http://www.europarl.europa.eu/code/information/guide_en.pdf; EU Council, The ordinary legislative procedure – http://www.consilium.europa.eu/en/council-eu/decision-making/ordinary-legislative-procedure/; and EU Council, Guide to the ordinary legislative procedure, November 2011 – http://www.consilium.europa.eu/workarea/downloadAsset.aspx?id=1101. Other legislation can be adopted using an alternative process (the “special legislative procedure”) under which the European Parliament has a reduced role, but that still requires the approval of the EU Council. ↑
- Article 10(2) TEU. EU Council, What does the Council of the EU do? – http://www.consilium.europa.eu/en/council-eu/. ↑
- http://www.votewatch.eu/blog/wp-content/uploads/2012/07/data-annex-to-votewatch-europe-2012-annual-report-final.pdf. In the period 2013-2015, the UK voted against 8.7% of the legislative acts at the Council of Ministers. ↑
- UK Parliament, Introduction to scrutiny – http://www.parliament.uk/business/committees/committees-a-z/lords-select/eu-select-committee-/committee-work/parliament-2010/introduction-to-scrutiny/. ↑
- TFEU Article 5, Protocol on the Role of National Parliaments in the European Union – http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012E/TXT&from=EN. ↑
- Article 14(2) TEU – http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012E/TXT&from=EN. ↑
- European Parliament Information Office in the UK, European Elections – http://www.europarl.org.uk/en/your-meps/european_elections.html. ↑
- Article 12(a) TEU – http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A12012M%2FTXT. ↑
- http://www.parliament.uk/business/committees/committees-a-z/lords-select/eu-select-committee-/. For its recent discussion of the referendum process itself, see http://www.publications.parliament.uk/pa/ld201516/ldselect/ldeucom/30/30.pdf. ↑
- Article 5(3) TEU provides that national parliaments “ensure compliance with the principle of subsidiarity” in accordance with the procedure set out in the Protocol on the application of the principles of subsidiarity and proportionality (the Subsidiarity and Proportionality Protocol – http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2004:310:0207:0209:EN:PDF). It should be noted that, currently, a national parliament is unable to object to EU legislation on the ground of proportionality. Under the “yellow card” procedure, both the House of Commons and the House of Lords can issue “reasoned opinions” if they consider a proposed EU law breaches the principle of subsidiarity. The EU institution that the relevant legislation originated from must consider any such opinions. If more than a third of national parliaments object by reasoned opinion, then the Commission is obliged to provide reasons to accompany its decision to maintain, amend or withdraw the draft legislation. Under the “orange card” procedure, if more than half of national parliaments object and the Commission insists on retaining the proposed legislation, then the Council and the European Parliament must decide whether the proposed legislation complies with the principle of “subsidiarity”. If 55% of Council members or a simple majority of the European Parliament consider that the proposal does not comply with the principle of subsidiarity, then the draft legislation is withdrawn.The UK has also been at the forefront of a new “Green Card” initiative that enables Member States’ parliaments to join forces to make legislative proposals to the Commission, further influencing the development of EU policy. ↑
- “Where reasoned opinions on the non-compliance of a draft Union legislative act with the principle of subsidiarity, sent within 12 weeks from the transmission of that draft, represent more than 55% of the votes allocated to the national Parliaments, the Council Presidency will include the item on the agenda of the Council for a comprehensive discussion on these opinions and on the consequences to be drawn therefrom. Following such discussion, and while respecting the procedural requirements of the Treaties, the representatives of the Member States acting in their capacity as members of the Council will discontinue the consideration of the draft legislative act in question unless the draft is amended to accommodate the concerns expressed in the reasoned opinions. For the purposes of this paragraph, the votes allocated to the national Parliaments are calculated in accordance with Article 7(1) of Protocol No 2. Votes from national Parliaments of Member States not participating in the adoption of the legislative act in question are not counted.” – European Council, European Council meeting (18 and 19 February 2016) – Conclusions – Section C: Sovereignty, EUCO 1/16, Brussels, 19 February 2016, page 17 – http://www.consilium.europa.eu/en/press/press-releases/2016/02/19-euco-conclusions/. ↑