15 February 2016

What domestic options are there for boosting national sovereignty?

The question of the primacy of EU law over national law has emerged as one of the main themes of the EU referendum campaign. In recent days there has been increasing speculation about what could be done domestically to strengthen parliamentary and national sovereignty. Open Europe has examined the options in greater detail in a new briefing, but here are the three broad approaches:

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Fundamentally, accepting the primacy of EU law is part of the EU membership package – if member states were to refuse to do so, the single market would simply not work. There is no ‘silver bullet’ that can restore ‘full sovereignty’ at the domestic level while allowing the UK to remain an EU member. All international agreements, such as trade agreements, including any potential post-Brexit UK-EU deal, or defence agreements such as NATO, require a degree of sovereignty to be compromised. Ultimately, it is a question of trade-offs and degrees.

What do other member states do?

That said, many other member states have put in place measures to safeguard their national sovereignty and constitutional systems from EU over-interference. There are essentially three tools national constitutional courts have at their disposal:

Policing EU institutions’ competence creep: Ensuring that EU institutions do not legislate in areas in which they have not explicitly been given the power to do so.

Protecting member states’ constitutional identities: Setting out some principles (most likely enshrined in a written constitution) which are so fundamental to the national identity that they are in fact inviolable, even where they appear to conflict with EU law.

Policing national transposition of EU laws: Striking down domestic laws where national governments are deemed to have overstepped the mark in implementing EU law.

The experiences of other member states demonstrate that a combination of these approaches could help to draw lines in the sand which EU institutions are wary of crossing. The German Constitutional Court is arguably the pre-eminent example – as its record demonstrates, it has not been afraid to assert the limits of EU powers. While it may never have directly struck down an EU law, history suggests this power has acted as a brake on the EU intuitions’ most integrationist tendencies. This has been most clearly visible in the Eurozone debate with various measures ranging from Eurobonds to a single jointly-underwritten deposit guarantee scheme being completely off the table (see full briefing for further examples from other member states).

Given that safeguarding national sovereignty has long been a feature of the British debate about Europe, it is sensible for the UK to explore all the possible ways in which it can guard against EU competence creep and have at least as good protection as other member states.

However, the Government should be wary of quick fixes. The German constitutional system is based not only on a written, codified constitution, but strong constraints on the executive. UK parliamentarians have traditionally been wary of granting judges greater power. This type of constitutional reform may or may not be desirable but careful thought needs to be given to the wider consequences, intended or otherwise.