Sovereignty, supremacy and all that

My heart is sinking as David Miliband opens the third reading debate on the EU (Amendment) Bill. Yet again all the same old arguments are going to be thrashed out, no doubt at great length, and repetitively. It’s all important, I know, and sometimes it’s great fun, but déjà vu or rather entendu is definitely part of the whole experience.

I thought I’d take this opportunity though to respond to a post from Iain Dale on a new clause Bill Cash wanted inserted into the Bill. It said –

Notwithstanding any provision of the European Communities Act 1972, nothing in this Act shall affect or be construed by any court in the United Kingdom as affecting the supremacy of the United Kingdom Parliament.

I disagree with Iain: not on the desirability of Parliamentary sovereignty, but on the desirability of this amendment. It makes no sense, for more than one reason.

First of all, there’s a very strong argument that it would have no effect since no provision in either this Bill or in the ECA 1972 affects Parliamentary sovereignty at all (I think it’s potentially confusing to talk of Parliamentary “supremacy”). Parliament can always repeal the 1972 Act (which would amount to leaving the EU, or at least causing a huge international political crisis by, in effect, repudiating all EU rules), and that proves that sovereignty is intact. Only if somehow Parliament’s ability to repeal that Act were curtailed would sovereignty be limited.

This is why I don’t like the way people sometimes explain the workings of the Human Rights Act (which allows Parliament to legislate contrary to Convention rights) as “preserving Parliamentary sovereignty”. Since Parliament can always repeal the HRA, it could never have affected sovereignty anyway, regardless of the model it adopted for protecting human rights.

It’s true that both those Acts, the ECA and the HRA, do not admit of implied repeal in the way most Acts do: to that extent the traditional doctrine of implied repeal, which is an application of Parliamentary sovereignty, has been modified. But that’s not because of Europe, or human rights. It’s because of the way those Acts are drafted, so as to provide that today’s legislation, unless repealed, colours tomorrow’s legislation. Any Act which attempts the same effect will oust implied repeal in the same way; and the fact that Parliament can do this shows the extent of its sovereignty, not its limits. Here’s an interesting article which discusses these issues from a New Zealand perspective. From what I’ve said it’ll be clear that I disagree with Laws LJ’s theory in the Thoburn (or “metric martyrs) case that the ECA and HRA are special because they are “constitutional” in nature. That’s not the point. The issue is one of statutory intepretation where two Acts apparently conflict: can Parliament expressly make any provision overriding subsequent legislation which impliedly contradicts it? The ECA, the HRA and Thoburn show that it can.

So Bill Cash’s clause, even if passed, would not mean that the 1972 Act, which brings into our own law the doctrine of the supremacy (the right word in this context) of EU law, would be weakened in any way. The supremacy of EU law is perfectly reconcilable with Parliamentary sovereignty since it persists only so long as Parliament wills it.

I think William Hague recognises what I’m saying’s right, which is what explains why the Tories didn’t support the amendment. He’s talked in today’s debate about “ultimate Parliamentary sovereignty”, which he clearly thinks persists, and by which he can only mean what I’m talking about. Where I disagree with him is his suggestion that this “ultimate Parliamentary sovereignty” might need some entrenched constitutional protection. It doesn’t! And it’s amazing to hear a Tory talking this dangerous “written constitution” nonsense.

Secondly, nothing in “this Act” i.e. the EU (Amendment) Bill, would affect sovereignty even if you think these things are irreconcilable. It’s the 1972 Act itself, not this Bill, that provides for the supremacy of EU law – so preserving sovereignty from the Bill would make no difference.

The truth is that Bill Cash’s aims can only be achieved by repealing section 2 of the 1972 Act, or at least subsections (1) and (4).

He’s obsessed with dicta of Lord Denning in the case of McCarthy’s v Smith back in the 1970s, in particular his suggestion that

If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it or intentionally of acting inconsistently with it and says so in express terms then I should have thought that it would be the duty of our courts to follow the statute of our Parliament.

You can find the full quote at this Eurosceptic website.

Well, Lord Denning’s right in this entirely orthodox view of constitutional law. But on the basis of this Bill Cash wants to insert “notwithstanding any provision of the ECA 1972” all over the statute book, in the attempt to override the supremacy of EU law. Well, he has a sort of point: you could indeed draft an Act in a specific policy area, say, a fisheries restricting British waters to British boats, so as to exclude EU law. If I were drafting it, I’d say the 1972 had no effect in relation to it, or something similar.

But clearly that would provoke a legal and constitutional crisis, and the UK could still be fined by the ECJ for its non-compliance with the common fisheries policy. No: the only real way to achieve what Bill Cash wants is to leave the EU and repeal the 1972 Act. I wish he’d be open about that.

I’d like to leave you with another bit from that Lord Denning quote – a bit that Bill Cash doesn’t often quote.

This means that ultimate sovereignty still rests with Parliament: Community Law prevails only because Parliament wants it to prevail. Parliament could always repeal the European Communities Act and then Community law would cease to have effect in the United Kingdom.