Bill Davies – Københavns Universitet

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Bill Davies

The Incoming Tide: Britain’s Ongoing Struggle with European Integration

The United Kingdom (UK) seems to be caught in a wrenching struggle with itself to both embrace and reject the European legal order. This is the archetype love-hate relationship on an international scale. Nowhere else is the reception of European Union (EU) law so complicated and inextricably intertwined with history, politics and a tradition of contestation as in the UK. Britain is seen to be an ‘awkward’ partner, with a skeptical public, a savagely Euroskeptic press and a centuries-old tradition of independent governance. In 1974, a year after the UK’s accession, Britain’s leading public figure in the judiciary, Lord Alfred Denning, described Community laws as an unwanted ‘incoming tide’, flowing up British estuaries and rivers, unable to be dammed. By 1990, the alarm in Denning’s tone was magnified. No longer just a tide, European law was now a ‘tidal wave bringing down our sea walls and flowing inland over our fields and houses—to the dismay of all’. At the same time, the UK has had a higher compliance rate with EU law than either France or Germany, and even in the recent parliamentary rejection of a ruling of the European Court of Human Rights – an institution synonymous in British minds with the EU – the House of Commons reaffirmed its willingness to uphold its international legal obligations. Moreover, in the single referendum held in 20th century Britain – on the question of continued membership – a near two-thirds majority voted to stay in. In a judicial sense, the House of Lords accepted the primacy of EU law as long as Parliament chooses for the UK to remain in. How then do we explain this enigmatic legal relationship between Britain and the EU?  

This study of the ‘reception’ of European law in the UK represents part of an on-going, larger inquiry into charting how the important constitutional changes in the European legal system were received by the member states, and more importantly still, how the member states reacted against, or ‘pushed back’, these changes. The conditions they placed on their acceptance of this parallel and autonomous legal order aspired to by the European Court of Justice were formative in shaping the contours of the new system.  The varying success of national agency in making the European legal system ‘structurally congruent’ with the domestic order is an integral part in explaining the functioning and emergence of EU law as a ‘metastate’.