How to Save Sovereignty!

Martin Howe QC

Friday 5th February: The Prime Minister has now received the EU’s offer of a ‘deal’ on this country’s future relations with the EU, and is prepared to negotiate on that basis. However, so far no answer has been given to the biggest question of all, ‘Who Governs Britain?’

Here, Martin Howe QC reflects on the law as it stands and explains what would need to change if the British Parliament is, once again, to be at the helm.

As the Prime Minister seeks to renegotiate our terms of membership of the EU, ideas are also being floated of introducing domestic legislation to shore up the sovereignty of Parliament. Without entering into the fevered politics of how they play into the forthcoming referendum campaign, I want to address what might be done as a matter of law by UK domestic legislation and what if anything it might achieve.

One of the fundamental features of membership of the EU which sets it apart from belonging to other treaty-based organisations is that EU law, as interpreted by the European Court of Justice, applies directly within the Member States and has primacy over their own laws.

The first idea, proposed in a Telegraph article last year by Boris Johnson, is to have an Act of Parliament which states that Parliament has the power to disapply EU laws within the UK if it chooses to do so.

The problem with this idea is that Parliament already has this power and what’s more we already have an Act of Parliament which says in clear terms that it has that power.

The reason why EU law has primacy over Acts of Parliament in British courts is that Parliament itself has said so in the European Communities Act 1972. But the courts have always accepted that Parliament has the power to unsay or modify what it said in the 1972 Act if it uses clear language.

In order to cement in this legal principle and to prevent it being watered down by judicial drift over time, the 2010 Conservative Manifesto promised a “sovereignty clause”. This was duly delivered in the shape of section 18 of the European Union Act 2011 which states in clear terms that EU law only has force inside the UK so long as Parliament continues to give it force.
So an Act of Parliament of the kind envisaged by Boris Johnson would be a legal nullity. Not only would it not change the law, but it would just declare again what has already been clearly stated by Parliament in the 2011 Act.

But changing our domestic law is not the problem. No Act can affect the UK’s obligations under international law or international enforcement mechanisms. The overt disapplication of an EU law by Parliament would be followed by our domestic courts but would invite an escalating conflict with the EU.

The Commission would ask the ECJ to fine UK for its breach of the Treaties. Either we yield (disastrous politically having once taken a stand) or we refuse to pay. If we refuse to pay then we may have EU cash due to us withheld. As a net contributor we then withhold our budget contributions to the EU. At some point our actions could be treated by other Member States as a fundamental repudiation of the Treaties entitling them in turn not to honour their treaty obligations towards us. How such an escalation path would pan out and whether the dispute could be resolved at various stages without a total and abject climb-down by us is unpredictable.

There is a second and more subtle idea for strengthening our sovereignty by changing our domestic law. This is modelled on the position in Germany, where the Constitutional Court has repeatedly said that the German Constitution, as interpreted by it, is supreme within Germany if there is a conflict with EU law. But despite adopting this principle, the Constitutional Court has in practice shied away from using this power and there is not yet one specific example where it has actually struck down an EU law in this way.

It would be possible to adopt a model of this kind in this country, by amending the European Communities Act 1972 to say that EU law cannot override fundamental constitutional rules in the UK. In fact, the Supreme Court has made a start on this by holding that EU law cannot override Article 9 of the Bill of Rights of 1689, which states that debates and proceedings in Parliament cannot be called into question in any place or court out of Parliament.

Because our constitution is not contained in a single document labelled “constitution” but consists of many Acts of Parliament and common law rules, it would be tricky to define what should be covered by such an exclusion. Nonetheless this is a potentially valuable reform which is much less likely to lead to an escalating conflict than disapplying specific EU laws. After all, we would only be doing what Germany and a number of other Members States do in giving ultimate primacy to their constitutions, as interpreted by courts not politicians.

Although this second idea would be a valuable long term reform, it does not deal with the central point. That central point remains that the primacy of EU law means that Parliament has been and will continue to be regularly overridden. It is over-ridden whenever a new EU law is passed by qualified majority vote and the UK cannot block it. It is also over-ridden whenever the ECJ “interprets” EU law to extend its scope, as it regularly does.

The problem with these ideas is that some people seem to want to have their cake and eat it. They want to belong to a club whose central rule is the primacy of EU law over the laws of its Member States. But they don’t want to be bound by that rule.

What can be done. It is perfectly possible to have a trading relationship which does not require internal primacy of its rules within its Member States, or have a system where changes to law are imposed by majority votes. In fact most trade agreements around the world do not require these things – trade disputes are dealt with at the international level.

We could have such a relationship with the EU if we vote to leave and negotiate a new trade agreement. But we can’t do it by staying members of the existing EU treaties, whatever tortured ideas for domestic legislation we try to dream up.

* Martin Howe QC is a practicing barrister specialising in European and intellectual property law. Mr Howe is the author of Politeia’s publication Zero Plus: The Principles of EU Renegotiation. His previous Politeia pamphlet, Safeguarding Sovereignty, included the recommendation for protecting British parliamentary sovereignty adopted for the European Act 2011.