The current European Union started out quite small as the European Economic Community in 1957. Britain only became a member in 1973 following the enactment of the European Communities Act 1972. Joining the club stirred a great anxiety among Brits, so much so that a national referendum needed to be held just two years later in 1975. But there was also another controversy from a constitutional theory point of view. Back then, the concept of parliamentary sovereignty (or supremacy) meant that there could be no authority higher than an Act of Parliament (law). This was because (as it still is) Britain did not have a written constitution to which the law-making parliament had to conform.
This lack of a formal written constitution to direct how the parliament should behave yielded two immediate effects.
First, law had the highest authority in the land and there were no limitations on what parliament could legislate.
Secondly, as a result, every parliament was sovereign in its own right in that it was impossible for one parliament to bind any subsequent parliaments (a new parliament could easily undo or supersede whatever the previous parliament had done). Such had been the teaching of the early constitutional law professor Mr Dicey of the 19th and early 20th centuries. But the nostalgic legislative supremacy concept had to give way following the 1973 accession by which the UK courts became obligated to give priority to the community law over the domestic law. In other words, the parliament of 1972, in enacting the European Communities Act, was able to bind all the subsequent parliaments by abdicating sovereignty in support of the new demands of the regional integration. This prompted the late professor Sir William R Wade, a most celebrated administrative law expert, to refer to this sudden change to the traditional legal order as a revolution.
I do not know how much the UK’s vote last week to leave the bloc – to reclaim sovereignty or even independence in the words of some – would entertain either Dicey or Wade. But the more globalised UK seems to belong to the younger generations who were born after 1973, identifying themselves as Europeans. Young people are naturally attracted to Europe, to cultural diversity, to greater economic opportunities, and to a more enhanced sense of political togetherness. But unfortunately, none of these seems to have mattered to their grandparents, who overwhelmingly voted to leave the European Union. While giving the people a direct say in major policies isn’t a bad idea, people’s pleasure of the moment should only be resorted to very carefully, especially when deciding complex issues that are not observable by the naked eye. Pundits could theorise about nationalism, fear of the growing number of immigrants, job losses, threats of terrorism, etc. And, fairly, there is some validity in those arguments. Actually, when the Conservatives came to power with the Liberal Democrats in 2010, their coalition-bound parliament quickly enacted the European Union Act 2011, which requires any proposed further expansion of the eu’s power to first seek the approval of parliament and obtain a positive referendum. This was designed to sound politically correct, and to appease the growing anti-EU sentiment.
Interestingly, Scottish voters, who recently voted not to leave the UK, have overwhelmingly voted to remain in the EU. Now that the UK is leaving the EU, Scotland has a stronger reason to hold another referendum to leave the UK and apply for membership in the EU. Economic reasons aside, the Scots would feel more secure in the EU in the event of unfriendly acts by their neighbours. Meanwhile, the relationship with Northern Ireland isn’t very nice either. We all remember that it was only in 1985 that the Irish and British governments signed the Anglo-Irish Agreement.
I cannot pretend to be more British than the Brits, but it would be desirable that the UK remain in the group. The formal process of withdrawal will take several years and there will be absolutely nothing nice about the exit negotiations on trade deals, security, agriculture and immigration. Hopefully, the new government will be able to persuade another referendum to return to the EU in due course. But make no mistake: a return to the EU will depend on the power of the young population, who must persuade their grandparents that they must abandon Dicey’s nostalgic notion of sovereignty and think about the younger generation.
More importantly, the EU as an institution must re-brand itself and re-energise its members by reminding themselves why the community must exist in the first place. The remaking of a sense of urgency and relevance is well overdue.
Dr Virak Prum, LLB, LLM, received a PhD in international development from Nagoya University in 2006.