This afternoon as part of his new EU policy, David Cameron promised a National Sovereignty Act, to make clear that British institutions ultimately rule on our relationship with the EU. I watched his speech, and thought he made a pretty poor job of explaining this (admittedly fairly abstruse) aspect of his policy. I fear that with this policy – that I think is both unnecessary and alien to our constitution – he will raise Europhobe hopes without having any real effect on the relationship between EU and UK law.
What he’s saying is that, just as in Germany the German constitution is ultimately sovereign, so that the German Constitutional Court could rule recently on whether Germany could sign up to Lisbon, so, equally, the UK constitution should be supreme in the UK, and the last word on what is law here should rest with Parliament and the British courts. That is a reasonable proposition.
But it’s also the existing position. Parliament is sovereign, it can repeal the European Communities Act 1972 or amend it, the British courts would interpret and apply any such amendment, and the British courts decide whether the UK can sign up to any further EU integration – as indeed they did in the 1990s in the Rees-Mogg case.
Cameron’s proposal will change nothing; there is no legal or constitutional point in it, and it’s even dangerous. Parliament has no need to legislate for its own sovereignty (indeed it makes no sense to do so since Parliamentary sovereignty is a common law rule) and doing so raises a critical question: what would the position be if such legislation were ever repealed? As you were, might be the answer. I hope so; I’d rather the question could never be asked. This is dangerous constitutional tinkering.
And if journalists’ questions to him are any guide, many will think his plan would somehow limit the power of the European Court of Justice or affect the EU law doctrine of the supremacy of EU law. It would surely do no such thing (although he seemed to suggest it might, prospectively), not at least if he meant what he said about trying to achieve equivalence with Germany. I fear, though, that this will seriously and misleadingly raise the hopes of radical Eurosceptics.