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

DOIhttp://doi.org/10.1111/eulj.12027
AuthorMarco Tabarelli
Published date01 May 2013
Date01 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.
II Models 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 2013 European Integration and Judicial Power
341
© 2013 John Wiley & Sons Ltd.

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