Bill Cash’s European Scrutiny Committee of the Commons is looking at the EU Bill, and in particular is considering very closely clause 18, William Hague’s “national sovereignty clause”, which I’ve written about before. If you’re as interested as I am in this clause and the relationship between EU law and our own constitution, you’ll want to read or perhaps watch the evidence given on Monday by Professors Paul Craig of Oxford University and Trevor Hartley of LSE, and today by Professors Anthony Bradley of Oxford, Trevor Allan of Cambridge and Adam Tomkins of Glasgow.
Interestingly all these academic lawyers have told the committee they think clause 18 is of no practical effect – I’m glad they agree with me. Professors Craig and Bradley seemed a bit more sympathetic than the others (and than I am) to the idea of its having “symbolic” importance. I can’t see what the point of that is.
Today I thought Professor Bradley quite often seemed to stray into what he thought the law should be rather than explaining what he think it is, which I’m not sure was the most helpful approach to take. Professor Allan though (at 10:52:30) explained very well why clause 18 is no defence to the argument that EU law is entrenched in the UK, which was defeated in the “metric martyrs” case, and which Eurosceptics fear.
Most impressive to my mind was Professor Tomkins. I’m not sure I’m persuaded he’s right that Parliamentary sovereignty is not a common law principle (if not, then how is it law at all?) but he seemed to me admirably clear on what Parliamentary sovereignty is and what it’s not and importantly, he drew attention to the fact that this sort of legislation can be dangerous. He was also interesting on implied repeal (at about 12:15:50) and severely critical of the explanatory notes to the bill (12:26:40).
At one point (12:07:20) his session reminded me of the sort of meeting I used to attend between ministers and lawyers, in which after a couple of hours the minister exasperatedly asks: So what do we need to do to achieve what I want? And the lawyer replies: What do you want? I think the real problem is that Eurosceptics have no clear idea of what they want a sovereignty clause to do. I think the government’s policy is to provide an empty sop to Eurosceptics, which is exactly what clause 18 does. The question is, will Eurosceptics on this committee realise that’s what’s happening?
Watching today’s evidence I was struck yet again by how strangely obsessed MPs are by the “notwithstanding” issue Bill Cash goes on and on about – in other words, whether the courts would given effect to UK legislation inconsistent with EU law, if it said expressly it applied “nothwithstanding” the European Communities Act 1972, while leaving the 1972 Act alone. Why Bill Cash or anyone else thinks MPs would ever want to present the courts with this conundrum, I have no idea. The only reason for doing it would be the pure fun of it. If you seriously wanted national law to derogate from EU law you’d expressly amend the ECA 1972, and the courts would have no problem.