Cameron’s sovereignty plan: what to hope for, and what to fear

by Carl Gardner on February 21, 2016

Cameron on MarrDavid Cameron’s EU deal has been published. But there’s a missing piece of his jigsaw: a “sovereignty plan” that he hoped would reassure waverers like Boris Johnson. On today’s Andrew Marr show, the Prime Minister hinted at what this plan might be (from 49 minutes 10 seconds into the programme; a sound recording is here).

He told Marr that

we’re going to set out in the coming days proposals … to make clear that … the British Parliament is sovereign. We have chosen to join the EU, we could choose to leave the EU, and I think there’s some important work to put that point beyond doubt …

Marr (who quizzed Cameron on the right legal points) put to him that the UK can’t just “declare UDI” from EU law. He replied that

What you can do … is just put beyond doubt in people’s minds, because sometimes this is questioned … that in the end what our Parliament does, our Parliament can undo; it is a sovereign Parliament …

He declared that—

I am passionate, and love the institutions and the constitution we have in our country …

which is nice but surprising, given Cameron’s history of self-serving constitutional whimmery, such as his demand for compulsory elections after a change of PM, which was flatly contradicted by his awful Fixed-term Parliaments Act; and such as his ongoing support for a wrong-headed “British Bill of Rights”, and recently his government’s spiteful attack on the House of Lords for acting constitutionally over tax credits. The PM has proved himself no conservative on the constitution, or great lover of it.

But back to sovereignty. Asked if he might empower the UK Supreme Court to restrain the European Court of Justice, Cameron said

there is this argument, which our proposals will address, that countries that have written constitutions have sometimes been able not only to assert the sovereignty of their own Parliament … but actually to go further and say that those constitutional principles have to be taken into account.

Finally, asked if he’s proposing a written constitution, Cameron replied

I’m not making that argument. I think we shouldn’t have to do that in order to give to ourselves what some other countries have managed inside the EU—no, I don’t think that’s necessary …

which is a relief. A written constitution would not preserve Parliamentary sovereignty, but end it. So we’ll avoid the worst.

Cameron may simply want some re-restatement that Parliament is sovereign. I say “re-restatement” because it wouldn’t be the first time he’s induced Parliament pointlessly to restate its own sovereignty. Here’s what I wrote about that nonsense at the time.

But it also seems that Cameron has swallowed the myth that other countries—no doubt he means Germany, whose constitutional court is envied by some—are more insulated from EU law than Britain. We must remind ouselves of the basic, telling constitutional fact: there is no Parliamentary sovereignty in Germany. So when Cameron said other countries

have sometimes been able … to assert the sovereignty of their own Parliament

he was flatly wrong. If any EU member state has Parliamentary sovereignty to assert, it’s not Germany. Germany’s parliament is subordinate to its written constitution, the Grundgesetz (here in the Bundestag‘s own English translation). This is clear from article 1(3), which introduces articles 2-19 (in essence Germany’s “bill of rights”) and says

The following basic rights shall bind the legislature …

and article 20(3), which says

The legislature shall be bound by the constitutional order …

Parliamentary sovereignty is the direct opposite: it means Parliament is not bound by any higher law. How can we preserve Parliamentary sovereignty by copying a country that rejects it?

What the PM overlooks is that assertive noises come from the German court because it, not the Bundestag, has prime constitutional power. Indeed, the court limits what the federal parliament may assent to in Europe. The German court’s power, in other words, comes at the expense of its parliament.

They are only noises, by the way: there is no example of an EU law that Britain obeys and Germany rejects.

If German judges ever refuse to implement EU law, there’ll be a legal crisis. The ECJ could fine Germany; someone might have to give way; or else a solution would be found by politicians to satisfy both sides. But it’d be just the same if Britain rejected an EU law. The ECJ might fine us; a solution might have to be found satisfying both the ECJ and Parliament.

Parliamentary sovereignty means that in Britain it is Parliament that reserves the right to reject EU law—not a constitutional court—and Parliament that has ultimate primacy. So Britain is already in exactly the same constitutional relationship to the EU as Germany. The difference is that we have a sovereign Parliament, while Germany has a sovereign written constitution guarded by its constitutional court. Germany’s apparent extra safeguard is an optical illusion.

If a German mirage leads the PM to empower our own judges, that power may well one day be turned on Parliament. Our top judges were relabelled a “Supreme Court” not long ago; they’ve been urged to assert themselves against the European Court of Human Rights, and are already doing so against EU law. If you dress them up further as a “constitutional court” and give them new powers to declare things in breach of a fundamental or embryonic written constitution (such as a “bill of rights”), they might soon see themselves as our constitution’s

ultimate controlling factor … defining the limits of Parliament’s legislative sovereignty

to adapt Lord Hope’s words in Attorney General v Jackson in 2005 (para. 107). They might even feel emboldened to qualify Parliamentary sovereignty as having been

established on a different hypothesis of constitutionalism

to quite Lord Steyn’s notorious words in the same case (para. 102). Our constitution really would start to resemble Germany’s, and Parliamentary sovereignty as we know it would be finished.

If conservatives, of all people, end up empowering judges against Parliament, they’ll bitterly regret it. Anyone who really loves the British constitution should fear this plan, and hope it’s anodyne.

{ 9 comments… read them below or add one }

1 Brian Barder February 21, 2016 at 23:07

Your comments on the prime minister’s latest (unsuccessful, as we now know) attempt to drag the London Mayor, Mr Johnson, into the Stay camp by means of fiddling verbally with the constitution look to me absolutely right. But I confess to some uncertainty over the concept of parliamentary sovereignty. Part of this, as I understand it, is the principle that what parliament has done, parliament can undo. But what about an international treaty commitment that Britain has entered into (with, presumably, parliament’s original consent)? Having signed and ratified the UN Charter, and thereby accepted certain obligations, such as not to use force in our international relations except in self-defence or with the consent of the UN Security Council, are we free to denounce that obligation by a simple vote of the UK parliament? If parliament were to decide not to apply sanctions (for example against S Africa in apartheid days) that had been required under a Chapter VII resolution of the Security Council, would parliament’s decision override that of the Security Council under UK law, even if not under international law, and would we not then be liable to be penalised by the Council for failure to observe its binding resolution?

Similarly, what if the UK parliament, in exercise of its asserted sovereignty, were simply to denounce the UK’s membership of the EU, declaring our EU treaty commitments null and void, without going through the procedures for exit laid down in (?) the Lisbon treaty? Such defiance of our international law obligations would obviously have dire consequences for UK interests, especially in our future relations with our former EU partners, which in practice limit parliament’s freedom in theory to do what it likes. Is that not in reality a limitation on its sovereignty?

I realise that our courts are not constitutionally or legally empowered, obliged or competent to enforce or interpret our international law obligations unless they have been embodied in our domestic law by parliament, as the HRA embodies most of our ECHR obligations, but if the rest of the world refuses to recognise the validity of actions by a national parliament unilaterally and without due process to renounce its international obligations, doesn’t that in reality limit the omnipotence of parliament?

I would also be tempted to argue that certain domestic laws have or acquire an implicitly entrenched constitutional status which prevents their arbitrary repeal by parliament (devolution to Scotland, and the Northern Ireland settlement, being obvious examples). Another practical limit on parliamentary sovereignty, surely?

Finally, if and when we wake up to the reality that the UK is already a semi-federation (Prof. Bogdanor’s word) of its four constituent nations, and pursue that reality to its logical end, it will be bound to entail a written constitution, among other things defining the powers of the respective tiers in relation to each other. Obviously the upper or federal tier won’t be able to enforce or interpret its own powers in relation to those of the lower or national tier: as in every other true federation, this will need to be the responsibility of the federal supreme court. Hence the position you rightly describe in federal Germany: the same is of course true of other federations such as the US, Australia, Canada, and many others. The idea of parliamentary sovereignty is incompatible with a federal constitution, as you have demonstrated in the case of Germany, and we are already more than half-way to federal status. For that reason alone it seems to me imprudent and misguided to try to cling to or resist the erosion of the idea of parliamentary sovereignty, which for many reasons is increasingly (a) largely meaningless and (b) probably doomed, in a globalised world and a semi-federal UK.

2 Carl Gardner February 22, 2016 at 11:50

Brian,

I think most of the “uncertainty” you have comes from mixing together different legal systems: the domestic legal system of the UK, and the external legal system of international law. It’s important to keep them separate, and to realise that Parliamentary sovereignty is an entirely domestic constitutional concept, with radical effects in our domestic legal system but no effects whatever in international law. It’s not a “magic wand” that trumps international law except inside our own domestic legal system. [In that, by the way, it resembles the German Grundgesetz and any other country’s written constitution].

It’s also important to realise that Parliamentary sovereignty is solely about who makes law in our domestic legal system. It’s not the same thing as exercises of national sovereignty generally (like going to war, say) that aren’t about making law.

what about an international treaty commitment that Britain has entered into (with, presumably, parliament’s original consent)? Having signed and ratified the UN Charter, and thereby accepted certain obligations, such as not to use force in our international relations except in self-defence or with the consent of the UN Security Council, are we free to denounce that obligation by a simple vote of the UK parliament?

No vote of Parliament can denounce a treaty as a matter of international law. That’s because what you’re talking about—denunciation of a treaty—is something that happens in international law. Equally, no Act of Parliament can unilaterally remove us from the EU. That’s a step the government would have to take in international law, under article 50 of the Treaty on European Union.

What Parliament can do, though, is make law domestically that entirely contradicts our international law obligations. The classic example of that is our current electoral legislation, which is in flat violation of our international law obligation under the ECHR to give some prisoners the vote. Yes, Britain is in breach of the ECHR; yes, this creates a kind of (I think now low-level) crisis; but the domestic legal position is absolutely controlled by Parliament.

Equally, Parliament could refuse to implement a new EU measure. As things stand, Parliament has given EU measures automatic domestic effects to some extent but Parliament could prevent that, by disapplying section 2 of the European Communities Act in relation to any specific measure. It’d mean a crisis, the UK would be in breach of the EU treaties, it might be fined and so on—that’d all be on the international (i.e. EU) law level. But in terms of domestic law , the position would be governed by Parliament alone. That’s what Parliamentary sovereignty means. British judges would work out what to do by determining what Parliament indended. They would not think “Ah, Parliament clearly intends X but there’s an overriding international law duty to do Y“. Judges can only think like that if they think Parliamentary sovereignty is over.

what if the UK parliament … were simply to denounce the UK’s membership of the EU, declaring our EU treaty commitments null and void, without going through the procedures for exit … Such defiance of our international law obligations would obviously have dire consequences for UK interests, especially in our future relations with our former EU partners, which in practice limit parliament’s freedom in theory to do what it likes. Is that not in reality a limitation on its sovereignty?

I’ve already dealt with leaving the EU, I think. On the wider point, in a sense I agree with you. But that sense is a non-legal sense. Of course there are important practical limits on what Parliament will actually do. You may find this an absurd thing to say, but as far as constitutional law is concerned, practicality is of no account. It may be practically disastrous and politically impossible and utterly loopy for Parliament to make some law. But that doesn’t mean you conclude that Parliament couldn’t legally do it.

For instance, I doubt Parliament would pass a “Death of the First Born Act”. But legally, nothing’s stopping it. Human rights? Nah. As it happens the Human Rights Act wouldn’t need amendment, even, in order for the DFBA to take effect. I realise that statement seems crazy at first blush, and that you may think I’m bonkers. but it really is so. And mad as it sounds, understanding that that’s the legal position is essential to understanding Parliamentary sovereignty.

Incidentally law students are often weirded out by the idea that Parliament can make law extraterratorially, such as the classic idea of making it an offence to smoke on the streets of Paris. But it not only can but does: for instance I think torture is an offence in the law of England and Wales wherever it’s committed. Parliament’s ability to do that is in no way conferred on it by the UN, say. Nor, to be clear, does it mean any other legal system is affected (gendarmes don’t have to arrest anyone in Paris, unless on a European Arrest Warrant, say). It does mean anyone committing these offences abroad can be tried in the UK.

if the rest of the world refuses to recognise the validity of actions by a national parliament unilaterally and without due process to renounce its international obligations, doesn’t that in reality limit the omnipotence of parliament?

Parliamentary sovereignty has nothing to do with what other nations recognise. It’s solely about what the law is inside our own legal system.

I would also be tempted to argue that certain domestic laws have or acquire an implicitly entrenched constitutional status which prevents their arbitrary repeal by parliament (devolution to Scotland, and the Northern Ireland settlement, being obvious examples). Another practical limit on parliamentary sovereignty, surely?

I agree there’s a practical, political “limit” here. But again, practical “limits” (we really mean political obstacles to a particular exercise of Parliamentary sovereignty) don’t qualify the true constitutional position, which is that Parliament could repeal the Scotland Act. Indeed, far from its being entrenched in the way you suggest, don’t recent events prove that Parliament can amend the Scotland Act whenever it likes? A bill doing exactly that is in the House of Lords right now, to give more powers to the Scottish Parliament; and there’s no higher law that says amendment can only go in one direction.

3 Henry February 22, 2016 at 14:59

Parliamentary sovereignty is old hat, a 17th century concept long past its sell-by date. As Germany has recognised, sovereignty should rest with the people and not with a bunch of showers elected by the minority on the back of a warped electoral system and their unelected cronies and donors.

4 Steve Peers February 22, 2016 at 20:36

Great post, Carl. Just a fiddly point in reply to your reply to a comment. If we issued a European Arrest Warrant for smoking on the streets of Paris, the French government would likely refuse to execute it on grounds of dual criminality (smoking on the streets not being one of the list of crimes for which dual criminality is abolished).

5 Carl Gardner February 22, 2016 at 21:49

Steve,

Good point! Quite right.

6 James Howitt February 23, 2016 at 17:40

Stupid question time from a layman:

Can our Supreme Court then refuse to follow a ruling from the ECJ and “send it back”?

What would happen afterwards (You hinted at a process in the blog but if the Member State refuses to pay the fine etc etc).

Great read and thanks.

7 Carl Gardner February 23, 2016 at 20:07

James,

You’re welcome.

No, the ECJ’s ruling would bind the national court. If a national court did reject an ECJ ruling, it’d create a Köbler type of situation, and the member state concerned would be liable for damages.

As for what’d happen if the Supreme Court decided just to dig its heels in, well, it’d just be another sort of crisis situation like the ones I imagined being caused by the German Constitutional Court or by Parliament. Some solution would have to be found, or someone would have to give way.

It is worth mentioning though that if this happened in Britain, Parliament would have power (if it wanted to) to resolve the situation by changing the law and in effect “overruling” the Supreme Court. Again, this is because of Parliamentary sovereignty. I expect it’d be far more difficult for the German Parliament to do anything like that in a similar crisis.

8 Damien Smith February 23, 2016 at 23:51

Question: would exempting certain legislation (like the Scotland Act or the Human Rights Act) from the Parliament Acts make a meaningful difference here?

9 Brian Barder February 24, 2016 at 00:15

Carl, many thanks for replying so fully and with such clarity to the questions in my earlier comment. It’s fashionable in some quarters, isn’t it?, to dismiss international law (including Charter and other treaty commitments) as hardly amounting to ‘law’ at all, being mostly couched in ambiguous and sweeping language, wished on us by a gang of banana republics and tinpot dictators, openly flouted by most of the world apart from Britain and the starry-eyed Nordics, and anyway completely unenforceable. Your comments underline, in my eyes anyway, what a travesty this is and what an important role international law plays in public life — and the extent to which in practical terms, if not in legal ones, ‘national sovereignty’, meaningful if at all only in regard to domestic law, is constrained and limited by international law, as represented by the real world beyond Calais (and Galway). We can’t vote to exit from the globalised world.

It would be salutary if the mob of saddos preaching Brexit could be reminded of the essential pettiness of their noisy preoccupation with national sovereignty, which in any case we have partially pooled as an EU member state, not given away or had stolen from us. No doubt it’s possible to make an intellectually respectable case for Brexit but I don’t see banging on about sovereignty as a part of one.

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