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Charon QC podcast: William Hague’s “National Sovereignty” Clause

I know I’ve been away a few weeks – we all need a blog break occasionally – but I’m back with a bang, with a piece at the Guardian Law website yesterday on William Hague’s proposed “national sovereignty” clause, which he intends to put before Parliament in his EU Bill later this year to “reaffirm once and for all the sovereignty of our ancient parliament”. I think he’s monkeying around with the constitution:

There is no need to enshrine parliamentary sovereignty in legislation. Indeed, doing so is in the truest sense redundant: a national sovereignty clause can only have legal authority because of the existing common law rule that parliament is sovereign. What’s more, Hague’s clause will need to be carefully drafted to make sure it cannot possibly be read as in any way affecting or limiting the common law sovereignty on which it depends – or it could have unintended but far-reaching constitutional ramifications.

Read the whole thing here. I’m amazed that the Conservatives of all people should have got themselves so muddled about the legal relationship between the UK and the EU, and about what Parliamentary sovereignty is, that their foreign secretary is putting forward legislation interfering with the absolute essence of our legal system, and arguably representing the biggest single step we’ve ever made towards a written constitution – something that’d be a historic mistake, and hardly a conservative move.

I also spoke to Charon QC about this today, and recorded a podcast about it in which I do my best to explain Parliamentary sovereignty in a nutshell, then to set out what I think the problems are with Hague’s proposal, including what might happen if it’s repealed, the need for it to be drafted more carefully than perhaps any legislation has been before and the dangers of creating a “two-tier” system of sovereignty. Charon’s absolutely right, at the beginning of our talk, to call Hague’s idea “extraordinary”.

Listen to the podcast here.

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  1. The foreign secretary may be trying to make it plainer to other EU member states that they cannot assume the British constitution can be any more easily pushed aside than can the more formalised constitutions and their courts of, say, Germany or Italy.

    Other European countries do not enjoy the democratic access to their constitutions that we do; all of us can have our more- and less- informed say, and our highest judges are surprisingly up with the arguments from all directions. Other countries get their constitutional interpretations handed down from those who ‘know’.

    It’s not clear if Mr Hague wants to narrow our options or enlighten our fellow EUers.

  2. For Parliament to grant itself sovereignty seems tautological.

    * Parliament is already sovereign, in which case the bill changes nothing (except that it may possibly erode parliamentary sovereignty, as your podcast suggests).
    * Parliament was not already sovereign, in which case the bill is ineffective.

    As someone who is opposed to parliamentary sovereignty and in favour of a written constitution, I see this as a positive development. And if Parliament is stupid enough to pass this legislation, perhaps it will thereby demonstrate itself unworthy of unlimited sovereignty.

  3. So Parliament passes an Act of Parliament to state that Parliament is sovereign (ie it can pass any law it wants to irrespective of what has gone before.) That means it can also repeal the same Act at some point in the future, but after the repeal Parliamentary sovereignty would still exist because it existed in the first place, which makes the original Act superfluous.

    It’s like an old philosophical/theological conundrum. Could God create a rock so heavy that he could not lift it?