The UK and the EU · Notes

Parliamentary sovereignty is the constitutional rule that Parliament can make or unmake any law, that no Parliament can bind a future Parliament, and that no body above Parliament can overrule it. A V Dicey's nineteenth-century statement of the rule is still the textbook formulation.

Legal vs political sovereignty

• Legal sovereignty is the theoretical power - what the constitution says can be done. Parliament has legal sovereignty.
• Political sovereignty is the reality of power - what actually gets decided and by whom. In practice the government dominates when it has a majority; the courts shape law through interpretation; the public sets limits through elections and referendums; and from 1973 to 2020 EU institutions had a real say.

The UK joined the European Economic Community in 1973 under the European Communities Act 1972. Membership meant pooled sovereignty - decisions on trade, the environment, economic regulation, and some rights were made collectively at EU level rather than purely by Westminster.

The treaties

• European Communities Act 1972 - UK statute that incorporated EU law into UK law on accession.
• Maastricht Treaty 1992 - created the European Union from the European Economic Community. Expanded EU policy reach beyond trade into citizenship, foreign policy, justice.
• Lisbon Treaty 2007/9 - deeper integration. More qualified majority voting on the Council of the EU; stronger European Parliament; legal personality of the EU.

The Four Freedoms of the Single Market

• Goods - frictionless trade across EU borders without customs checks.
• People - freedom of movement; EU citizens could live and work in any member state.
• Services - service businesses could operate across borders.
• Capital - money could move and be invested across borders.

The Four Freedoms allowed frictionless trade but limited domestic control - which became the central Brexit argument, particularly on freedom of movement.

Widening and deepening

• Widening - the EU grew from 6 to 28 member states (now 27 after Brexit). The 2004 enlargement brought in Poland and other former Eastern Bloc states.
• Deepening - more policy areas brought under EU competence (environment, social policy, justice, foreign and security policy).

Two divisions matter for the exam. Supranational institutions act above the member states with their own institutional identity. Intergovernmental institutions are composed of representatives of national governments.

European Commission - supranational

The EU executive. Composed of one Commissioner per member state, each nominated by their government but expected to act in the EU interest. Proposes EU laws (only institution that can propose legislation); prepares the EU budget; enforces EU laws.

European Council - intergovernmental

Composed of the heads of government of the member states. Meets up to four times a year. Takes major strategic decisions (treaty changes, enlargement, broad direction of EU policy).

Council of the European Union - intergovernmental

Also called the Council of Ministers. Composed of ministers from each member state, with the specific minister attending depending on the policy area. Takes decisions on whether to adopt legislation, working with the European Parliament. Lisbon Treaty's expansion of qualified majority voting means individual states can now be outvoted.

European Parliament - supranational

The only directly elected EU institution. MEPs elected every five years; UK no longer has MEPs since Brexit. Co-decides on most legislation with the Council of the EU; has a say in the budget; accepts or rejects nominations to the Commission.

European Court of Justice (ECJ) - supranational

Enforces EU law and resolves disputes between member states. Sits in Luxembourg (NOT to be confused with the European Court of Human Rights in Strasbourg). Where pooled sovereignty bites hardest - its rulings bind member state courts. Factortame is the UK example. Post-Brexit, no longer has direct UK jurisdiction except in Northern Ireland under the Windsor Framework and (per Starmer's 2025 reset) over UK-EU fish trade.

The textbook UK case showing EU law supremacy over UK Acts of Parliament.

The story

• The UK government passed the Merchant Shipping Act 1988 requiring British-registered fishing vessels to be majority British-owned - to stop Spanish fishing companies fishing under the UK quota.
• A Spanish fishing company called Factortame argued the Act broke EU law because it discriminated against EU nationals exercising freedom of movement and freedom of establishment.
• The European Court of Justice ruled in 1990 that EU law had priority over UK law in EU competence areas.
• The UK House of Lords (then the highest UK court) confirmed that EU law could overrule UK law.
• The Merchant Shipping Act 1988 was disapplied to the extent it conflicted with EU law.

Northern Ireland Protocol + Windsor Framework 2023

To avoid a hard border in Ireland (which would have breached the Good Friday Agreement 1998), Northern Ireland continued to follow many EU single-market rules on goods with checks at ports between Great Britain and Northern Ireland. The ECJ retained limited jurisdiction in NI on these areas. The arrangement caused major political difficulties (the DUP refused to participate in Stormont for two years).

The Windsor Framework (February 2023) renegotiated the Protocol under Sunak. Simplified GB-NI checks with a "green lane" for goods staying in NI. Northern Ireland still follows many EU rules; the ECJ still has limited jurisdiction. For one part of the UK, pooled sovereignty has not fully ended.

UK-EU Trade and Cooperation Agreement 2021

EU-UK Trade and Cooperation Agreement 2021. Governs the post-Brexit trading relationship. Allows tariff-free and quota-free trade in goods (provided rules-of-origin met) but introduces customs checks, regulatory checks, and increased paperwork. Service trade much more restricted than under Single Market membership. Does NOT include the Single Market or the Customs Union.

Starmer's 2025 reset

Keir Starmer's Labour government from July 2024 has moved toward closer EU alignment without rejoining the Single Market. The May 2025 UK-EU summit produced a reset including new arrangements on defence cooperation, food and animal product trade (sanitary and phytosanitary), and a fishing agreement that runs to 2038.

Reading 1 - yes, Parliament has regained legal sovereignty

EU law no longer has supremacy. The ECJ no longer has direct UK jurisdiction (with the NI and fish-trade exceptions). The Retained EU Law Act 2023 ends the special status of EU-derived law. Factortame-style cases cannot happen for new disputes. The legal sovereignty question is settled in Parliament's favour.

Reading 2 - no, the executive has gained at Parliament's expense

The strongest counter-reading. The Brexit process required vast amounts of secondary legislation by ministers rather than Acts. The European Union (Withdrawal) Act 2018 gave ministers wide-ranging powers to make changes to retained EU law by statutory instrument. Scrutiny by Parliament is generally weaker than for full Bills. Power has moved inside the UK system, not just back from outside it.

Reading 3 - devolution further fragments sovereignty

Sovereignty is also distributed across Scotland, Wales and Northern Ireland. The Internal Market Act 2020 imposed a UK-wide approach to internal trade that the Scottish and Welsh governments objected to as overriding their competences. The Sewel Convention is not legally binding. Sovereignty in practice is divided across multiple parliaments.

Reading 4 - the UK still chooses some external jurisdiction

Northern Ireland Protocol / Windsor Framework keeps ECJ jurisdiction over NI on goods. Starmer's 2025 reset returns ECJ jurisdiction over UK-EU fish trade. The UK remains a signatory to the ECHR. Sovereignty is a choice, not a fact - and the UK keeps making choices that involve sharing it.

What the ECHR is

• The ECHR was drafted in 1950 by the Council of Europe - a separate body founded in 1949 as a post-WWII rights protection mechanism.
• The Council of Europe has 46 member states (Russia expelled 2022 after Ukraine invasion); many of its members are not EU members.
• The ECHR is enforced by the European Court of Human Rights (ECtHR) in Strasbourg, France.

How the ECHR sits in UK law

• The Human Rights Act 1998 made the ECHR enforceable in UK courts.
• HRA section 3 requires courts to interpret legislation compatibly with the ECHR where possible.
• HRA section 4 allows courts to issue declarations of incompatibility when this is not possible.
• The UK remains a signatory to the ECHR; the HRA is the domestic vehicle.

Cases that are ECHR, NOT EU

• Hirst v UK (2005) on prisoner voting - went to Strasbourg, not Luxembourg.
• R (Begum) on citizenship deprivation - ECHR not EU.

The 24-mark and 30-mark Paper 2 questions on this topic almost always test sovereignty - in legal vs political senses, or comparing one era to another. Likely framings:

• "Evaluate the view that the location of sovereignty in the UK has changed significantly since 2016."
• "Evaluate the view that Parliament has regained full sovereignty following the UK's departure from the EU."
• "Evaluate the view that the impact of the European Union on UK government was overstated by Brexit supporters."
• "Evaluate the view that the executive now dominates UK government following the UK's departure from the EU."

The three-theme structure

Each theme is a directly comparative pairing. For "sovereignty has moved":

• Theme 1, legal sovereignty has been reclaimed (Factortame impossible now; Retained EU Law Act 2023).
• Theme 2, but political sovereignty has shifted to the executive (EU Withdrawal Act 2018 wide powers; statutory instruments).
• Theme 3, devolution + chosen shared sovereignty complicate the picture (Internal Market Act 2020; NI Protocol; Starmer 2025 fish deal).