Tabarelli on the impact of the EU and the ECHR on parliamentary sovereign regimes

This post reviews Marco Tabarelli’s article The Influence of the EU and the ECHR on ‘Parliamentary Sovereignty Regimes’: Assessing the Impact of European Integration on the British and Swedish Judiciaries (available here) in the European Law Journal, vol. 19, issue 3, at p. 340-363, May 2013. The author, researcher at the University of Bologna, attempts to show how the two supranational legal orders norms and case-law change the balance of power within states that use the so-called parliamentary sovereignty doctrine.

According to the article there is a tension within democratic states, since they on the one hand are to follow the majoritarian rule and on the other also safeguard minority rights. All constitutional solutions fall somewhere between two ideal end points. The first one is pure parliamentary sovereignty and the other is the Montesquieuian separation of powers.

Regimes that can be considered to be parliamentary sovereignty regimes have a weak judiciary, and judges are viewed as a potentially undemocratic force. Judicial review of legislation does not exist or is strongly limited. The judiciary has a weak independence from the executive branch of the state. The judicial culture generally is characterized by self-restraint. When it comes to regimes with a separation of powers, the judiciary is viewed as the guardian of constitutional and individual rights. Its purpose is to limit the majoritarian rule and has the capacity to perform judicial review of legislation. There is also a strong independence towards the executive branch of government for the judiciary. It should however be noted here that the classic Montesquieuian separation of powers doctrine does not incorporate judicial review. This was a later development of the doctrine.

Sweden and the UK are considered by the author to be parliamentary sovereign regimes. The author also, at least in the view of the role of the courts, considers the European Union (the EU) and European Convention for the protection of human rights and fundamental freedoms (ECHR) to be legal systems that fall under the separation of powers model. Since both Sweden and the UK are members of the supranational legal orders the article examines the effect on the UK and Swedish judicial system from three perspectives, judicial capacity, judicial attitudes and judicial independence.

The UK

In the UK the parliament sovereignty principle holds a strong position within the judicial system. The English Parliament cannot be stopped from enacting, revoking or altering any legislation by a previous Parliament. The branches within the system are therefore not on equal terms when it comes to power. There is an undisputed supremacy of the elected institutions towards the judiciary and the courts cannot challenge the legislative Acts of the Parliament. This situation has however, according to the author, been changed by the process of European integration. The EU membership brought with it large changes since it gave UK courts the power to evaluate and not apply Acts of Parliament if they where incompatible with EU legislation.

Sweden

The political power in Sweden lies with the executive. However, formally the sovereignty lies with the one-chamber Parliament.  It is hard to separate the Swedish judges from public administrator in regards of their roles in the political system. Judicial intervention in politics is viewed skeptically within Sweden and is very limited. The strength of the executive in Sweden is probably one of the reasons for this, according to the author attributed to that Sweden has due to the decades of Social Democratic government and it is argued that this has affected how the role of the judges are perceived. They are seen as implementers of the legislation and the judges’ interpretation of the statutes reflect that situation. The interpretation is done with deference to the legislator and creativity is discouraged. A formal judicial review has existed in Sweden since 1979, in the Swedish constitution, the Instrument of Government (IG), 11:14 (available here in Swedish). The IG 11:14 states that if a provision conflicts with a fundamental law or other superior statute the courts are allowed not to apply that provision. However, in the case of the parliament or the executive branch of government the error that leads to the conflict has to be manifest. The use of this judicial control of legislation has at least until the mid 1990s been negligible by the Swedish courts. Judicial review has however increased in later years and the author contributes this to the fact that Sweden has joined the EU and the ECHR has been incorporated into Swedish law. When the ECHR was incorporated into the Swedish legal system a provision was added to the constitution preventing that a law or regulation could be issued that was in conflict with the ECHR.

Tabarelli treats the manifest requirement to be still part of the Swedish constitution. But this was changed in 2010 while the article is published in 2013. The manifest requirement has been removed from the constitution before the article was published. It even appears that the requirement was removed before the first submission of the article to the European Law Journal that was made in August 2011. The removal of the manifest requirement was put into effect on 1 January 2010. If the author had taken this fact into account in his analysis it may or may not have changed his conclusion, however in some regards it is a large mistake to have missed a legal change of this magnitude since the first draft of the article was not accepted until August 2011. Furthermore, he had at least 2 years to notice the change before the final draft was submitted. In fairness, he does mention that the manifest requirement in IG 11:14 was proposed to be removed in 2008 in the article. However, that entry should also have made the author aware of the fact that a change might happen and he should probably have checked if the change had happened at least before he submitted the final draft. It should also be noted that the European Law Journal have also missed this mistake in their own review of the article.

Tabarelli’s conclusion

The UK and the Swedish legal system are being transformed by the EU membership and the ratification of the ECHR. The transformation has been larger in the UK than in Sweden. The author contributes this to two main reasons. The first one being that the judge as a lawmaker is accepted in the UK, at least in regards to the common law. And the other being that Sweden has had Social Democratic government for decades with a “conception of the judges as passive implementers of the legislator’s will is deep-rooted” (see p. 363). The countries in the EU that have the parliament sovereignty principle of government are being changed by the membership. They are moving away from the parliament sovereignty principle towards a separation of power.

Comments

The article describes an ongoing process that changes the balance within the legal system of European countries. This process is interesting and the article touches on a subject that goes to the core of what effects the European integration has on the balance of power in certain member states. However the analysis seems not to take into account certain factors that may contribute to the difference between the UK and Sweden. The author explains why the effects of the European integration are more evident in the UK than in Sweden by the two reasons mention earlier. A problem with his conclusion in regards the effect of decades of Social Democratic government is that he does not look at what role the judges had before this era. To establish that decades of Social Democratic government have had an effect on the judiciary there should be a change from the situation before this time period. Neither does he take into account the difference in how long the UK and Sweden have been members of the EU. The UK joined the EU in 1973, while Sweden joined 22 years later, in 1995. There is a quite substantial time difference here. However, Sweden and the UK are both co-founders of the Council of Europe, and have both been its members since 1949. In that regard there is no time difference. But it could be considered that the EU system is far more invasive when it comes to the national legal systems than the ECHR system, in particular due to the preliminary reference procedure and the supremacy of EU law over national law. So the time difference cannot just be discarded as irrelevant and the author’s reasons for not considering it as an explanatory factor of the differences between Sweden and the UK should have been presented.

by Elisabeth Aronsson, Hevi Dawody och Magnus Österdahl

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About eulaworebro

Örebro Universitet (Sweden)
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