Friday, 12 November 2010

That'll go down well in Brussels and Luxembourg

So the Coalition have entered the fray of the battle for British Parliamentary Sovereignty.

Law Students are taught that Parliament is supreme. Some are then taught that there is an exception - the Law of the European Union is superior to the Common Law and Statute Law passed by Parliament. Some are then further taught that that exception only exists at Parliament's pleasure - i.e. that the European Communities Act 1972 provides for the that supremacy - but that Parliament could repeal that Act and take away that supremacy. Others argue differently - the European Court of Justice for example in Costa v ENEL said:

It follows from all these observations that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question

In Van Gend en Loos v. Nederlandse Administratie der Belastingen the ECJ stated: 

"...the community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights."
In Factortame the ECJ said that English Courts should overide primary legislation where it conflicted with EU Law. The House of Lords duly obeyed - but were careful to say that they were obeying Parliament and the 1972 Act and were not directly applying EU Law, unmediated by the 1972 Act. In the end they could not bring themselves to assert that as Judges they had a duty to obey the EU and not Parliament.  They only had a duty to obey EU Law because Parliament had told them to do so.

The Treaty of Lisbon says this:

17. Declaration concerning primacy
The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.
The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260):

‘Opinion of the Council Legal Service
of 22 June 2007
It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL,15 July 1964, Case 6/641 (1) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.

So our international obligation is to permit EU Law to be Supreme over domestic law, whether made by Parliament or otherwise.
The last word, however, from the English Courts was - Thoburn v Sunderland City Council in which Laws J said:

"there is nothing in the [European Communities Act] which allows the Court of Justice, or any other institutions of the EU, to touch or qualify the conditions of Parliament's legislative supremacy in the United Kingdom. Not because the legislature chose not to allow it; because by our law it could not allow it."

In other words Parliament itself has no jurisdiction to confer it's un-repealable supremacy on another body - such as the European Court of Justice.

It is Thoburn that William Hague is repeating in the Coalition's new European Union Bill which states 

It is only by virtue of an Act of Parliament that directly applicable or directly 
effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, 
remedies and procedures referred to in section 2(1) of the European 
Communities Act 1972) falls to be recognised and available in law in the United

This clause only really makes sense if there is a real possibility of withdrawal from our membership of the EU.  Such withdrawal without a Treaty to authorise it would be contrary to international law and EU members could take aggressive steps to hold us to our obligations (sanctions for example - freezing our assets in the EU).  In other words and realistically and saving war with our EU partners, Parliament is only ever going to be in position to repeal the 1972 Act if we agreed a Treaty with EU members to permit us to withdraw from the EU or at least from its legal order - in other words if they consented to the supremacy of EU Law no longer reigning in the UK.  To put it another way it is simply fantastical to put a clause in a Bill of Parliament in 2010 which seeks to proclaim a medieval version of Parliamentary Soverignty as a sop to Euro-sceptics and which declares a theoretical power to repeal EU legal sovereignty, but a power which most sensible people realise will never be used.  

Why can't we grow up and accept that we have joined the EU for good, that its laws are here to stay and that we might as well work at making the EU legislative process as democratic as possible rather than asserting medieval constitutional notions for the purpose of taking national pride in the theoretical possibility that we might just up sticks and leave.  It very much reminds me of Charles I proclaiming his constitutionally entrenched and perfectly lawful divine right to rule in the face of a House of Commons which ended his power by some its leaders taking the practical step of decapitation.  Practical reality - Realpolitik -always overrides constitutional theory.  Instead of being as uselessly belligerent as Charles I, why don't we just realise that our Constitution has changed and accept the supremacy of EU Law.  


  1. I respectfully agree with all you say until you get to - "The clause only makes sense if there is a realistic possibility of withdrawal ..." Any member state is entitled to withdraw under the terms of Article 50 of the Treaty on European Union. No new treaty is required in order to withdraw. Instead, a withdrawal agreement is drawn up. They cannot stop a member state from withdrawing if it wishes to do so but, of course, one would lose the advantages of membership.

  2. I do not write as a lawyer - rather an observer of political currents in our society and abroad. In that role, I am struck by the similarities between the discussions over our position/powers in Europe and the position of the pre civil war states of the USA. The immediate causus belli in that case was not slavery but states rights and the right of secession from the Union. The Lisbon treaty allows for an orderly and legal secession from the EU, so the right of secession is preserved. However, the present ratchet of EU powers to Brussels will raise the issue of states rights in an acute form sooner or later. I would not be so sanguine as to think we are in the EU 'for good'.