Discuss the impact that membership of the EU has had on the UK Constitution

A-Level: Politics

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The first area to consider is the issue of parliamentary or legal sovereignty. An institution can be regarded as sovereign if it has ultimate decision making authority, and is able to act without undue external constraint. However, since the UK’s membership of the EU, it can be said that the UK has sacrificed some of this legal sovereignty to the EU. For example, it has been sacrificed to supranational bodies such as the European Court of Justice and in those policy areas decided on by Qualified Majority Voting in the Council of Ministers. Laws made by the EU are binding on the UK and cannot be overruled or contradicted by UK law. Therefore the constitutional feature of obeying the rule of law is undermined. For example, the Factortame Case in 1990 where parts of the UK Merchant Shipping Act contravened EU law, and was therefore overruled. Regulations take immediate effect and do not require parliamentary approval. With directives, the results are binding but how these are achieved is left to the discretion of national governments, which preserves UK sovereignty, and therefore the Constitution to an extent. Europhiles would this to be pooled sovereignty instead, since UK representatives are involved in the EU legislative process on an equal basis to all other member states and take policy decisions which affect other states. However, the UK still retains ultimate sovereignty in the way that Parliament can choose to withdraw from the EU in a strictly legal sense at any time. It also can be argued that the primacy of EU law has curbed the dangers of an elective dictatorship. Additionally, national governments are still the most powerful actors within the EU and retain the veto on new developments in the treaties.
However there are also other issues to consider. UK judges can act on behalf of the European Court of Justice and suspend UK laws until a ruling is made. This in a way does undermine the flexibility of the Constitution, and reduces the influence of convention. But, it does promote a separation of powers which is generally lacking in the UK Constitutional system. It must be noted however that the UK accepted this with the Treaty of Accession.
Another issue to consider is the loss of national veto with the extension of Qualified Majority Voting. Ministers have to share political power with other EU members, for example over agriculture, fisheries and the single market. This again has affected UK Parliamentary power and has made the UK Constitution in a way, more entrenched. The way in which the EU has extended its policy competency areas also highlights this, with areas that were originally the preserve of national governments, for example, home affairs, foreign policy etc, now falling under EU control. This jeopardises Parliament as the sole sovereign body and challenges the UK rule of law. However, pillar two and three are subject to unanimous decision making, so national interests can be protected, but the UK Constitution remains in a delicate situation.
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