Unit 2 – Relations with other institutions: Evaluate the view that since the UK’s has seen a total return of sovereignty since leaving the EU.

Evaluate the view that since the UK’s has seen a total return of sovereignty since leaving the EU.

I have long suspected that one year the exam board will ask a question about the Uk’s relationship with the EU. Given that the UK has now been out for 5 years it seems a suitable time to ask the question about whether Brexit has achieved its aims of restoring sovereignty to the UK Parliament.

With this question you will need to consider what is meant by sovereignty and how membership of the EU impacted upon the UK Parliament’s loss of sovereignty. Parliamentary sovereignty has three elements:​

1. Legislation made by Parliament cannot be overturned by any higher authority​
2. Parliament can legislate on any subject of its choosing​
3. No parliament can bind its successor

It is clear that when a member of the EU, the UK Parliament could not fulfil criteria 1 and 2. EU law held primacy over UK law and there were areas in which the EU held total ‘competence’ of the UK and take decisions on their behalf.  As you will read the, in theory the entire premise of Brexit was to regain sovereignty and yet five years since the UK left the EU, it is far from clear whether total sovereignty had been returned. In fact, although in theory, the UK has now regained sovereignty, it is still bound by too much of the rules and regulations of the EU. Nonetheless, the most convincing argument would be to argue that whilst there has not been a total return of sovereignty, it has been returned in a significant number of ways.

Below are four key points that could be made when answering the question:

Paragraph 1 – Loss of legislative sovereignty

Pro Brexit campaigners often cited that Britain’s loss of law-making powers were a key reason why she should leave the EU. It was certainly true to say that the UK Parliament did lose some of its legislative powers to the EU whilst it was a member. In fact, approximately 24% of all UK law had been made by the EU whilst it was a member. Moreover, where UK and EU law conflicted with one another, EU law held primacy. For example, as members of the EU, UK traders had to follow the metric system. The primacy of EU law over UK law was most famously illustrated in the 1990 Factorame case. The Merchant Shipping Act 1988, passed by the UK Parliament, had prevented non-British citizens from registering boats as British in order to qualify for the UK’s fishing quota under the Common Fisheries Policy. But the House of Lords, following a ruling from the Courts of Justice, decided that the Act was incompatible with EU law and should be ‘disapplied’. This undermined parliamentary sovereignty because it showed that laws made by parliament can be overturned by another authority. In theory, since Brexit, Britain has been able to scrap all laws made by the EU and therefore regain total sovereignty over legislation. However, when Britain left the EU on 31^st January 2020, the government decided that erasing all EU legislation would be politically unworkable. Therefore, a key part of the Withdrawal Act determined that all existing EU law would be kept. These laws were now called retained EU law. Moreover, this law was to remain supreme and all European Court of Justice interpretation of what the legislation meant would also remain. In this sense, by leaving the EU, Britain was still subject to huge swathes of EU legislation. The UK government determined that they would take their time to work through the pieces of EU legislation that they felt were worth removing or replacing and in time they did just that. Nevertheless, by July 2023, around 200 EU derived acts of Parliament and over 2,000 EU regulations were still retained EU law. In fact, just 33%  of EU retained laws had been repealed, replaced of amended. Despite attempts during Liz Truss’ short reign as Prime Minister to remove all retained EU law very little EU law was removed. Has the UK regained sovereignty over its legislation since Brexit? On balance, you would have to say that the strongest answer is in fact yes. Though a considerable amount of UK law has derived from the EU, the UK government has determined that these laws are beneficial and worth preserving. Moreover, the very fact that the UK government can remove EU legislation from its statute books and that any future legislation from the EU will not become UK law also demonstrates that the UK has regained legislative sovereignty from the EU.

Paragraph 2 – Control over her borders

A further issue is that Britain was subject to the four freedoms. As a member of the EU, Britain had to allow free movement for all European citizens into the country and as such it lost sovereignty over the control of its own borders. By 2021, there were approximately 4 million EU born citizens resident in the UK, an indication that many had taken advantage of the four freedoms to relocate to Britain. Moreover, the number of EU born citizens increased by almost 50% between 2011-2021, with many of these coming from the newer member states in Eastern Europe. Since Brexit however, the number of EU born citizens choosing to immigrate to Britain has fallen markedly. In fact, between 2016-2020, net migration from the EU fell by 58%. The impact of Brexit on EU immigration to the UK has been significant. In 2023, just 5% of all visas granted were to EU citizens. In many regards the UK has therefore regained control over its borders since Brexit and therefore sovereignty has been returned. This is only somewhat true however because the UK government has instead been forced to seek to replace the lost EU migrants with Non-EU migration. In fact, whilst the number of EU citizens employed by UK businesses remained static between 2020-2022, the number of non-EU citizens employed increased by almost 1million. Nonetheless, this is a decision that has been taken by the UK government. It is now, at least able to determine which migrants are able to come to live and work in the UK, a power that it did not hold prior to its decision to exit the European Union.

Paragraph 3 – Still bound to EU regulations

In December 2020, the UK Prime Minister, Boris Johnson, signed the Trade and cooperation Agreement with the EU, a deal that would govern the future trading and security relationship between the UK and EU. Johnson, called it a ‘cakeist’ treaty, in that Britain was ‘having its cake and eating it’. A key part of the Trade and Co-operation Agreement was that there were to be zero tariffs and quotas on all goods traded between the UK and EU. As such, Johnson was delighted as it enabled Britain to be able to diverge from EU standards and regulations and allowed her to stay out of the free movement of people but still have access to quota and tariff free trade. Unfortunately, Johnson’s optimism was misplaced. Though the UK was no longer subject to EU regulations, it also meant that goods travelling from the UK to the EU would need to undergo customs checks. The added costs of these customs checks has led many UK businesses to decide not to diverge from EU standards. This was not the only reason why there has been so little divergence from EU regulations within Britain. As Northern Ireland is still subject to EU regulations, it is concerned that more regulatory divergence with the EU will also mean more divergence from Northern Ireland and this has meant that the UK has been cautious about changing many of the EU regulations it inherited. The TCA also included a ‘level playing field’ provision. It was agreed that the UK would respect the principle of fair competition with the EU. For example, the EU banned nations from offering significant subsidies to businesses. The Level Playing Field provision saw the UK agree that it would not do this. Here, a major selling point for Brexit had been lost. The TCA also includes a non regression rule, which like the level playing field rule meant that the UK could not significantly reduce their standards. Now that it was not subject to EU regulations, the UK could begin to undercut the EU by getting rid of environmental regulations or working competition rules, which would make it cheaper to produce goods in the UK. Again, the ability to diverge from EU regulations had been a big selling point for Brexit. It could not now happen, at least on any large scale. An example of this has been the UK’s inability to deviate from the EU’s Working Hours Directive which said that workers should not work more than 48 hours in a week. On leaving the EU, the UK could now scrap the Working Hours Directive, which had now become part of UK retained law. However, by 2024, the government had only made very modest changes. For example, previously the Working Time Directive gave UK workers 4 weeks holiday and other UK laws gave workers 1.6 weeks holiday. The government merely combined these to guarantee workers 5.6 weeks holiday to cut down on paperwork. So why hadn’t the UK made many changes to the Working Time Directive? Quite simply, the Trade and Cooperation Agreement says that there has to be fair playing field and the non regression clause on standards mean that the UK can’t really deviate much from what was already set or it would face the TCA’s Dispute resolution procedure. If the UK made changes to the Working Time Directive it be seen as a regression of employment standards, and therefore the changes can’t really be made. The UK left the EU so that it could escape many of its regulations. As you can see, Britain has not only been unable to escape these regulations it has placed itself in a position where it no longer enjoys the benefits of being an EU member whilst still being subject to many of the regulations that govern it.

Paragraph 4 – Northern Ireland

One of the biggest problems associated with the UK’s exit from the European Union has been the issue of Norther Ireland. Trade between Northern Ireland, the rest of the UK and the Republic of Ireland was straightforward before Brexit – all parties were in the EU and shared the same trade rules. However, when the UK left the EU, a deal was required to allow trade to continue between Northern Ireland and the Republic of Ireland. The EU has strict food rules, and requires border checks when certain goods – such as milk and eggs – arrive from non-EU countries like the UK. Paperwork is also required for other goods. But the idea of checks at the Irish border is a sensitive issue because of Northern Ireland’s political history. It was feared that introducing cameras or border posts as part of checks on incoming and outgoing goods could lead to instability. The solution at the time of the UK’s withdrawal from the EU was that Northern Ireland would remain part of the UK but be subject to the regulations of the EU. Goods coming into Northern Ireland from England would now be subject to customs checks. In effect, the UK government was creating a border between the UK mainland and Northern Ireland. This was met with considerably fury by members of the unionist community in Northern Ireland. The Democratic Unionist Party (DUP) refused to serve in the Northern Irish assembly in 2022 which was then suspended for the next two years as a result. However, in 2023, Prime Minister Rishi Sunak agreed to the Windsor Framework with the EU.  It created two “lanes” for goods arriving in Northern Ireland from Great Britain: A green lane for goods remaining in Northern Ireland and a red lane for goods which may be sent on to the EU. Products going through the green lane do not need checks or additional paperwork. Red lane goods are still subject to checks. Furthermore, a ban on certain products – like chilled sausages – entering Northern Ireland from Great Britain was removed. And Northern Ireland no longer had to follow certain EU rules, for example on VAT and alcohol duties. The Windsor Framework also introduced a mechanism called the “Stormont brake”, which would let the Northern Ireland Assembly object to new EU rules which would affect Northern Ireland’s trade arrangements. So, whilst there has been a degree of relaxation of the rules, Northern Ireland still technically remains subject to a considerable amount of EU legislation. Has the UK regained sovereignty since Brexit? Well, not if you are in Northern Ireland.