Effect of EU Membership on the UK Constitution

“Membership of the European Union and the Council of Europe has undermined the UK Constitution to such an extent that the UK Parliament is no longer sovereign. It will be good to return to the traditional means of overseeing the work of government.”

Explain and analyse the statement above in the light of the current position under the UK Constitution.

This essay will analyse how being a member of the European union and council of Europe has undermined the UK constitution to such an extent that the UK is no longer sovereign. It could be argued that being a part of the EU and council of Europe has not undermined the sovereignty of the UK parliament. The reason for this is there are many factors such as delegated legislation, parliamentary sovereignty, the UK constitution and the fact that law making derives from government in the UK. This shows us that to a certain extent the UK is able to make and change laws without interfering with the EU and council of Europe. On the contrary, it could be argued that being a member of the EU and the council of Europe has undermined the UK constitution to such an extent that the UK is no longer sovereign. This is because of judicial review, the fact that the UK has to comply with the European convention on human rights act (ECHR) and follow article and regulations, the Human rights act (HRA) has been influenced by European laws and the council of Europe has an impact on the UK. This shows us that the UK has to follow the EU laws which has undermined their power and their sovereignty of the UK parliament.

The UK constitution is an uncodified constitution as it is not written down where it is made up of statutes particularly constitutional statutes, constitutional case law, laws and customs of parliament and constitutional conventions. One of the most important features of the UK constitution is parliamentary sovereignty. Parliamentary sovereignty is when the parliamentary law is sovereign over forms of laws in England and Wales where they can completely overrule any custom, judicial precedent, delegated legislation and any previous act of parliament. In other words as Dicey puts it parliament can make and unmake any law, nobody can question parliament and current parliament cannot bind future parliament. This means that there are no limits on what parliament can make laws about and that parliament can make any law it wants. Also, it means that current parliament can overrule any previous parliamentary act. For example, the case of Cheney V Conn shows us that parliament can make or unmake any law. This is because in this case Cheney who was a taxpayer argued that the imposition of taxes under the finance act 1964 was unlawful because the tax he was paying was being used to find nuclear weapons, however this was banned by the Geneva convention. As a result, the case was dismissed because the court said that a statute can’t be challenged on the grounds of being illegal as this would mean that supremacy of parliament would be denied. [1]Overall the sovereignty of parliament shows that the EU and council of Europe hasn’t undermined the power of the UK parliament because the UK parliament still has power to pass through any law they want without anyone questioning them and they are able to change and overrule any previous acts.

Another reason why the UK is sovereign over its parliament without the EU and Europe of council having an impact on it is due to delegated legislation. Delegated legislation which is also known as secondary legislation is when a person or body under the authority of an act of parliament makes law. This means that parliament will delegate the power to someone to make laws society requires only if they are granted the power to make delegated legislation by a parent act or enabling act of parliament. For example, the criminal justice act 1993 is passed through a member of parliament where they are able to make rules for complex fraud trials.[2] There are 3 main forms of delegated legislation that parliament makes under the enabling act; order in council, statutory instrument and byelaw. Order in council is when the queen and privy council has authority to make orders in council. This means that the prime minister, cabinet ministers and other senior politicians are able to make legislation without going through parliament. This shows that parliament is sovereign because they have authority to make law and orders in council. Statutory instrument was created by the statutory instruments act 1946 and is the most common type of delegated legislation. This is because it is rules, orders and regulations made by any minister or government department for the area of government they are responsible for. For example, the legislative and regulatory reform act gives the ministers the power to make any provision by order if it will remove or reduce a ‘burden’ resulting from legislation.[3] This shows that parliament is sovereign because it delegates power to a minister or government department to make laws. Byelaws are laws that are made by public bodies, local authorities and companies which must be approved by government ministers. In other words, byelaws are local laws made by local people for their local area which needs approval by ministers. In Boddington V British transport police Mr Boddington was caught smoking in a railway carriage where smoking was prohibited. He was convicted and fined by a magistrate under a by-law made under the Road Transport Act 1962. As a result this shows that the UK parliament is sovereign because these laws need to be authorised by ministers which shows they have authority and power over the laws that are being made. This is important because it saves time as they delegate certain government ministers to certain areas where each of them is experts in their area. Although delegated legislation gives parliament power, it can also undermine its power. This is because of ultra vires; ultra vires is when delegated legislation goes beyond the powers granted by the parliament in other words exceeding powers which results in it becoming void. There are two types of ultra vires; procedural and substantive ultra vires. Procedural ultra vires is when the delegated legislation passed through does not meet the procedure which was required by the enabling act, therefore this will render a piece of delegated legislation void. On the other hand, substantive ultra vires is when it goes beyond the scope authorised by the enabling act, therefore it is deemed void.

On the other hand, it could be argued that being a member of the European union and council of Europe has undermined the UK constitution to an extent that the UK parliament is no longer sovereign. This is because of the Human rights act which is an act passed in the UK in 1998 that states that people have the right to defend their rights and that everyone should be treated equally and in a fair way. Although the human rights act is an act for the UK, it wouldn’t have been passed if it wasn’t for the European union. This is because according to section 1 of the act it incorporates most of the ECHR into the UK law, which means that the UK has to follow the ECHR laws and do things according to these laws. As well as that, section 2 (1) states that if in a court a decision is trying to be made which involves the convention right they must take into account the judgement, decision and opinion of the European courts of human right. Not only that, the council of Europe has an impact on the decision being made because the ministers in the council of Europe put forward their views and decisions which has an impact on the final decision that is being made in the court. As a result, this shows that the European union and council of Europe have an impact on the sovereignty of parliament because it shows that the UK parliament is hostile to the human rights act and has to take into account the decisions of the ECHR. Also, section 19 of the human rights act states that at the second reading when new legislation is being introduced ministers should make sure the declaration of ECHR is compatible. This is because they need to show their intention to make such a declaration under the human rights act. However, the impact of the EU and council of Europe to the sovereignty of the UK parliament is to a certain extent. This is because of declaration incompatibility under section 4 of the act. Declaration incompatibility is issued by the judges that states that if the legislation is in conflict the ECHR, the minister does not have to change the law. This shows that ministers still have a say and that they are not completely controlled by the EU rules and laws.

The European union is a political and economic union containing 28 member states which includes the UK that joined in 1973 by signing three original treaties; the treaty of Maastricht, the treaty of Amsterdam and the treaty of Nice. This is important because being a member of the EU meant that the UK had to follow the EU rules and regulate under these rules according to section 2(1) of the European communities act which stated that the treaties signed will have an impact in the UK without enactment.[4]Not only that section 2 (2) of the act states that EU has power to amend an act of parliament. This is important because it shows that the EU has undermined the sovereignty of the UK parliament because EU had the power to get involved with any laws and acts passed in the UK and were able to change them in order to make them compatible with the EU laws.

The council of Europe has undermined the UK constitution to an extent that the parliament is no longer sovereign. The council of Europe is an organisation which aims to uphold human rights and democracy in Europe. It is an organisation that contains 47 member states and is responsible for the ECHR. The ECHR is an international treaty that aims to protect human rights and fundamental freedoms in Europe where it was signed in the council of Europe. This is important because the council of Europe had an aim of creating a democratic and legal area through Europe which affected the UK because they had to follow it because the ECHR which was a part of it which made up most of the HRA laws. However, the ECHR was managed by the European Court of Human Rights (ECtHR) which gives a right to individuals to make a complaint if they feel like their rights have been breached. This is important because it gives the UK the right to protect their rights if they feel like they are being violated by the laws stated in the ECHR. Although the UK was a member of the council of Europe the first complaint by a citizen was not made until 1975. This is important because in the case Golder V UK a prisoner was denied a solicitor while being arrested, therefore he could not seek advice about his current situation. As a result, on his release he made a complaint under article 6 of the ECHR that his fair trial was limited, therefore his case was successful.[5] This shows that the UK power was undermined to a certain extent because although they had the right and was a member of the council of Europe, it took a long time for a citizen to make a complaint to the ECtHR.

Although the parliament is able to make laws and take a decision or action towards a certain case, judicial review can undermine this power that they have. This is because judicial review is when the courts is able to set aside a decision or action made by a public body if it is unlawful. Judicial review can come into action in 3 cases; illegality, irrationality and proportionality and procedural impropriety. Illegality is when the decision maker needs to understand the law in order to give a decision, if it’s the opposite then an action could be taken against it in court. Irrationality and proportionality is when the decision been made is unreasonable and procedural impropriety is when the decision maker fails to take into account the procedures stated in the legislation. This is important because it shows that although public bodies have the authority to make a decision, if it its unlawful or unreasonable it can be set aside. For example, in the case Council of Civil Service Unions v Minister for the Civil Service is when Thatcher’s government prevented GCHQ civil servant from becoming a member of unions, therefore these members took an action for judicial review of this decision. Although the claim was dismissed, it was still reviewed in the court and stated that this type of power was used in order to protect national security.[6]As a result, this shows that the UK parliament is sovereign to an extent because their views can be challenged and can be changed based on the decision they have made.

Overall, it could be argued that the being a member of the European union and council of Europe has undermined the UK constitution to an extent that the parliament is no longer sovereign. This is because the UK has to follow the EU laws and rules under the European communities act and the EU has power to change any act that has taken place. Also, the ECHR is being put into the HRA which is an act of parliament which wouldn’t have been passed if it wasn’t for the EU. Not only that, but in the UK judicial review undermines it sovereignty because it is able to change or set aside any decision that are being made based on the principles that if it is unlawful, unreasonable or not according to the procedures in the legislation. On the other hand, it could be argued that being a member of the European union and council of Europe hasn’t undermined the UK constitution to an extent that the parliament is no longer sovereign. This is because due to Brexit the UK is about to leave the EU which means that they will have power as they will be able to maintain their sovereignty. Although this does take a long time, it means that once they leave the EU will not be able to interfere with the UK and the laws and decisions that are being made.

Bibliography:

Books:

Slapper, B, Kelly, D, The English legal system, (13^th ed. Routledge 2012)

Ward, R, Akthar, A, English legal system, (11^th ed. Oxford 2011)

Wilson, S, Mitchell, R, Storey, T, Wortley, N, English legal system, (2^nd ed. Oxford 2011)

Cases:

Cheney V Conn [1968] 1 WLR 242

Golder V UK [1975] 1 EHRR 524

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374

Statutes:

Criminal justice act 1993

The legislative and regulatory reform act 2006

European communities act 1972

---

[1] Cheney V Conn [1968] 1 WLR 242

[2] Criminal justice act 1993

[3] The legislative and regulatory reform act 2006

[4] European communities act 1972

[5] Golder V UK [1975] 1 EHRR 524[

[6] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374