The “national sovereignty” clause: broken belt and braces

by Carl Gardner on November 11, 2010

William Hague introduced his European Union Bill in the Commons today, and it will have its second reading as early as tomorrow – a debate that will no doubt be a treat. Much of the bill makes provision to require referendums before the UK can agree to treaty change conferring new power on the EU, and to require Parliamentary approval before ministers can sign the UK up to a series of other decisions, mainly under the various “passerelles” or “ratchet clauses” inserted into the EU treaties at Lisbon.

But clause 18 is the “national sovereignty clause” William Hague promised last month, and which I’ve written about and spoken to Charon QC about before. It’s worth remembering that this idea started as a proposal for an entire bill as a consolation prize to Eurosceptics for the abandonment of a retrospective referendum on the Lisbon Treaty. At the time he promised it, David Cameron vaguely hinted it might somehow set a limit to the effect of EU law in this country, or to the power of the European Court of Justice, or to the “creeping competence” of the EU – or something. Then, at this year’s Conservative conference, William Hague promised a clause that would “reaffirm once and for all the sovereignty of our ancient parliament”.

Well, now we can see the clause. This is what it says:

Status of EU law dependent on continuing statutory basis

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 Kingdom.

The good news is that my worst fears about it have not been realised. This clause does not aim at defining, affirming or otherwise affecting Parliamentary sovereignty itself, so it doesn’t risk cutting it down or creating a two-tier model of sovereignty depending on whether EU law is in play. Fine.

But the clause is utterly pointless, and has no legal effects at all. It’s already perfectly plain that EU law only has effect in this country by Act of Parliament – the European Communities Act 1972.

The explanatory notes to the bill admit this. Paragraphs 104-5 say the clause is

… a declaratory provision … EU law is enforceable in the UK only because domestic legislation, and in particular the European Communities Act 1972, makes express provision for this.

Paragraph 106 tries to give some sort of justification for the clause:

This clause has been included in the Bill to address concerns that the doctrine of Parliamentary sovereignty may in the future be eroded by decisions of the courts. By placing on a statutory footing the common law principle that EU law takes effect in the UK through the will of Parliament and by virtue of an Act of Parliament, this will provide clear authority which can be relied upon to counter arguments that EU law constitutes a new higher autonomous legal order derived from the EU Treaties or international law and principles which has become an integral part of the UK’s legal system independent of statute.

but any argument that the passage of 38 years means EU law has automatic effect in the UK, by-passing Parliament to become permanently locked into our system, is eccentric to say the least. Legislating pre-emptively to try to combat it is just as weird. And if there is any risk that “the doctrine of Parliamentary sovereignty may in the future be eroded by decisions of the courts”, it necessarily follows that the authority of this clause would be eroded, too. So this isn’t a straightforward case of “belt and braces”. Obsessed with anxiety about his perfectly sound braces, William Hague is putting on a broken belt with no buckle, and looks pretty daft to me. Again, paras. 109-110 of the explanatory notes give the game away:

This clause does not alter the existing relationship between EU law and UK domestic law; in particular, the principle of the primacy of EU law. The rights and obligations assumed by the UK on becoming a member of the EU remain intact … This clause is declaratory of the existing common law position …

I wonder how much of a fight there’s been in government about this between Eurosceptic Tories and Europhile LibDems – and whether the final discussions on the drafting explain William Hague’s absence in China recently.

I also wonder how Eurosceptics like Bill Cash will greet it. They’ll certainly welcome the referendum clauses in this bill, which are undoubtedly a win for them. But if they think clause 18 offers them anything worth having, they’ll buy anything.

Is squaring a troublesome faction in your own party really as easy as this?

{ 3 comments… read them below or add one }

1 keith November 12, 2010 at 00:42

Totally pointless rubbish.

European Law takes priority over domestic Law and still will by Statute. This priority exists as a result of Parliamentary supremacy as defined by A V Dicey ” every Law made by Parliament forms party of the Constitution and changes the Constitution”.

2 ObiterJ November 12, 2010 at 11:12

Yes – spot on. Clause 18 is quite unnecessary legally speaking. I share your view that, at least, Clause 18 should not do any damage in relationto “defining, affirming or otherwise affecting Parliamentary sovereignty itself.”

3 edmondy November 13, 2010 at 10:27

The Factortame judgement is often said to have circumscribed Parliamentary sovereignty because the judges did not uphold the principle that where two Acts of Parliament conflict the latter should impliedly repeal the former.

This principle is, it seems to me, just a pragmatic response to an irresolvable contradiction within the doctrine. A working answer to the question often asked in another context as, ‘is God so powerful he can make a stone so big he couldn’t pick it up?’.

I don’t agree that prioritising an earlier Act damages Parliamentary sovereignty. Parliament is still the supreme law maker, still able to define its relationships with other sources of authority.

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