The Influence of the EU and the ECHR on ‘Parliamentary Sovereignty Regimes’: Assessing the Impact of European Integration on the British and Swedish Judiciaries

• DOI: http://doi.org/10.1111/eulj.12027
• Author: Marco Tabarelli
• Published date: 01 May 2013
• Date: 01 May 2013

The Inf‌luence of the EU and the ECHR

on ‘Parliamentary Sovereignty Regimes’:

Assessing the Impact of European

Integration on the British and

Swedish Judiciaries

Marco Tabarelli*

Abstract: The paper analyses the consequences of European integration processes upon

the judicial systems of the so-called ‘parliamentary sovereignty regimes’, focusing on the

British and Swedish judiciaries. The aim is to understand if the inf‌luences coming from

European integration, favouring the expansion of domestic judicial power, have pre-

vailed, or the traditional distrust of such countries in judicial power has prevented the

empowerment of the domestic courts. The inf‌luences on the judicial systems are evalu-

ated distinguishing judicial capacity, judicial attitudes and judicial independence. The

paper argues that the political relevance of judges has strongly increased. However, while

European integration has deeply transformed the formal means at disposal of judges,

because of political and judicial culture the changes in actual judges’ behaviour have been

much more limited. Moreover, the paper highlights some unexpected ways in which

European integration can affect the domestic political systems (eg favouring certain

legislative reforms or legal principles).

I Introduction

The European integration processes—here, intended as the setting up of both the EU

and the institutional system established under the European Convention on Human

Rights (ECHR or Convention)—have entailed a number of well-analysed conse-

quences in the Member States’ political systems. Among these consequences, a general

trend towards judicialisation has been detected, ie the expansion of judicial power to

the detriment of executive and legislative institutions: domestic courts have gained

* Research Fellow, Department of Political Science of the University of Bologna, Italy. His main

research interest is the comparative analysis of judicial systems in democratic countries, with a par-

ticular attention to the relations between the branches of government and the determinants of judicial

policies. He has published ‘Le politiche giudiziarie inglesi negli anni 2000’, in Rivista Italiana di

Politiche Pubbliche, 2010, 3.

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European Law Journal, Vol. 19, No. 3, May 2013, pp. 340–363.

© 2013 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

new relevant competences, a wider degree of discretion in interpreting norms and

statutes as well as in choosing among norms of different levels, and the opportunity

to interact with supranational courts.

Obviously, the outcome of these changes cannot be the same in the different

national contexts, and certainly, it varies according to many factors. This paper

focuses on a particular kind of European countries—those in which the courts tradi-

tionally play a comparatively limited political role, here identif‌ied as ‘parliamentary

sovereignty regimes’—and tries to understand, in such contexts, the effects of the

European integration on judicial power and behaviour. Indeed, one could expect that

the introduction of signif‌icant judicial prerogatives in political systems not accus-

tomed to a strong judiciary is more problematic and destabilising than elsewhere.

In more detail, it will be argued that in the so-called parliamentary sovereignty

regimes, the clash between diverging forces is a particularly prominent one: while the

European integration tends to produce (material, normative and cognitive) dynamics

leading to a strengthening of the domestic judges, cultural and institutional charac-

teristics of the domestic political systems tend to limit the judicial power in favour of

majoritarian institutions. Therefore, the analysis aims to understand whether (1) the

mechanisms triggered by the supranational integration have been suff‌iciently strong

to appreciably modify the distribution of powers among the branches of the state, or

(2), on the contrary, domestic, cultural and institutional features have prevailed,

attenuating the pressures towards judicialisation and maintaining the judiciary in a

subordinated position.

In particular, among the parliamentary sovereignty regimes, the paper analyses the

operating of the judicial system, stressing the changes after the EU accession and the

ECHR incorporation, in the UK, with reference mainly to England and Wales,1and

Sweden.

The paper is organised as follows. Chapter 2 def‌ines the boundaries of the issue: it

identif‌ies two ideal types of liberal democracy, depending, in great measure, upon the

role assigned to the courts, and asserts that while the UK and Sweden—as well as the

other Nordic countries—are close to the parliamentary sovereignty model, most of

the other European countries—as well as, in some respect, the EU and the institu-

tional system of the ECHR—provide for stronger forms of separation of powers and

judicial control of legislative and executive activities.

Chapter 3 offers a synthetic overview of the main characteristics of the judiciary in

England and Sweden.

Chapter 4 tries to assess whether and to which extent the EU and the ECHR have

produced consequences in the English and Swedish political systems, focusing on the

transformations that have occurred in the role of the courts, vis-à-vis the other

branches of government. In more detail, three distinct aspects of the judicial system

are considered, namely (1) the judicial capacity, (2) the judicial attitudes and (3) the

institutional judicial independence.

IIModels of Liberal Democracy

Contemporary liberal democracies result from the conf‌luence of several different

traditions of political thought. The worldwide success of such synthesis, both in terms

1Note that hereafter every reference to England includes Wales as well.

May 2013European Integration and Judicial Power

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