HELP: Essay on membership to EU eroding Parliamentary Sovereignty

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Cath.1996
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#1
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Hi there,
I have been set an essay and am really struggling to come up with more that one point for each side of the essay.
So basically one of the obvious points is that we have lost some sovereignty as shown in Factortame since EU Law is superior and we cannot legislate against it which restricts parliament powers.
And the main counter point is that we can still withdraw from the EU and so Parliament's reserve powers mean that it can take back full sovereignty if it wishes to.
I would be immensely grateful if someone could give me some other points I could talk about.
Thanks
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Bupdeeboowah
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(Original post by Cath.1996)
Hi there,
I have been set an essay and am really struggling to come up with more that one point for each side of the essay.
So basically one of the obvious points is that we have lost some sovereignty as shown in Factortame since EU Law is superior and we cannot legislate against it which restricts parliament powers.
And the main counter point is that we can still withdraw from the EU and so Parliament's reserve powers mean that it can take back full sovereignty if it wishes to.
I would be immensely grateful if someone could give me some other points I could talk about.
Thanks
Maybe you might want to consider critiquing the following:

- The activist pro-EU CJEU and their teleological approach to the interpretation of EU legislation; if parts of EU law are actually judge-made and not treaty-made
- How most EU legislation is created through directives from the unelected EU Commission
- The effectiveness of the penalties for breaching EU law and CJEU's judgments
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Nolofinwë
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(Original post by Cath.1996)
Hi there,
I have been set an essay and am really struggling to come up with more that one point for each side of the essay.
So basically one of the obvious points is that we have lost some sovereignty as shown in Factortame since EU Law is superior and we cannot legislate against it which restricts parliament powers.
And the main counter point is that we can still withdraw from the EU and so Parliament's reserve powers mean that it can take back full sovereignty if it wishes to.
I would be immensely grateful if someone could give me some other points I could talk about.
Thanks
Hi OP, I've not got time to write a full answer, so just a few comments.

First, don't spend too much time discussing EU law. Establish their claim to primacy so we know why sovereignty is an issue, and then move on.

Second, don't feel (assuming that this is degree-level) that essays have to have a really rigid structure, or that you are looking for a numerical balance of arguments. One excellent argument can be far better than 3 vs 3 mediocre ones.

Third, question whether the bit in the quote which I put in bold is actually true. Lord Bridge at 658-659 in Factortame should be second-nature to you before you write the essay, and question (using inter alia Laws LJ in Thoburn) whether it is sovereingty, or some lesser constitutional doctrine, which has really been lost. I don't know if you can search through post history's on TSR, but, if you can, look for a thread on the 'tampon tax' which I commented on about a week ago, because I gave a fairly long argument for why we retain our sovereignty there.

Fourth, you can look at some more theoretical/philosophical reflections on sovereignty which attempt to reconcile sovereignty and EU membership - see in particular Wade's concept of the 'fundamental legal revolution' and Paul Craig on the normativity of sovereignty.
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Nolofinwë
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(Original post by Cath.1996)
Hi there,
I have been set an essay and am really struggling to come up with more that one point for each side of the essay.
So basically one of the obvious points is that we have lost some sovereignty as shown in Factortame since EU Law is superior and we cannot legislate against it which restricts parliament powers.
And the main counter point is that we can still withdraw from the EU and so Parliament's reserve powers mean that it can take back full sovereignty if it wishes to.
I would be immensely grateful if someone could give me some other points I could talk about.
Thanks
Two other things I just thought of that are worth adding to the above:
1. If you discuss Wade, link in Hart's rule of recognition (I always think that, conceptually, they are almost identical).
2. The HL/SC's recent approach to pluralism/Eurofreundlichkeit is interesting. Lord Mance has been a particularly strong proponent in Pham, HS2 etc.
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Cath.1996
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(Original post by Nolofinwë)
Two other things I just thought of that are worth adding to the above:
1. If you discuss Wade, link in Hart's rule of recognition (I always think that, conceptually, they are almost identical).
2. The HL/SC's recent approach to pluralism/Eurofreundlichkeit is interesting. Lord Mance has been a particularly strong proponent in Pham, HS2 etc.
Thank you so much for your input, really interesting points!
You've really helped, cheers!!
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Jono0812
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Essentially your argument is that Britain still remains sovereignty as we retain the right to leave the EU.

However, you could also argue that the following means the Government aren't sovereign in regards to the EU, but the people are:
• 'To require a referendum before the government could agree to change the current EU treaties, or to certain EU decisions, so as to transfer power to the EU.'

This ultimately means that the UK cannot leave the EU without the public voting for us to leave.

Source: http://www.theguardian.com/commentis...bill-explained
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Nolofinwë
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(Original post by Jono0812)
Essentially your argument is that Britain still remains sovereignty as we retain the right to leave the EU.

However, you could also argue that the following means the Government aren't sovereign in regards to the EU, but the people are:
• 'To require a referendum before the government could agree to change the current EU treaties, or to certain EU decisions, so as to transfer power to the EU.'

This ultimately means that the UK cannot leave the EU without the public voting for us to leave.

Source: http://www.theguardian.com/commentis...bill-explained
OP, I think this post is great as it raises some interesting definitional points. The first line defines sovereignty as some sort of ultimate legistaltive determinant (a view I would agree with), which can be contrasts to a claim that we lose sovereignty simply by surrendering supremacy over primary legislative material.

The second line asks what sovereignty entails. I'm not aware of any serious theory which argues that the government/executive/legislature represent the sovereign body since Austin, and I think his theory is generally discredited (see, once again, Hart, and also Hans Kelsen if you have the inclination).

There's also one interesting substantive point raised by the claim 'This ultimately means that the UK cannot leave the EU without the public voting for us to leave.' That would, in and of itself, be the end of Parliamentary Sovereignty by the normal definition as an earlier legislature would bind a later one (though arguably this is limited to a manner and form bind in this provision). Question, therefore, whether the EUA 2011 could actually achieve this and, if so, if that is a way in which the EU has indirectly/incidentally ended pure parliamentary sovereignty/.
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Cath.1996
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(Original post by Bupdeeboowah)
Maybe you might want to consider critiquing the following:

- The activist pro-EU CJEU and their teleological approach to the interpretation of EU legislation; if parts of EU law are actually judge-made and not treaty-made
- How most EU legislation is created through directives from the unelected EU Commission
- The effectiveness of the penalties for breaching EU law and CJEU's judgments
Thanks you for your help!!!
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