Wednesday, 4 November 2009
"The Sovereignty of Parliament": Cameron needs to go back to university
As every schoolboy knows, or at least used to, Parliament is sovereign and cannot be overridden, or bound by its predecessors. So, when David Cameron announced today that Parliament would be invited to pass a "Sovereignty Act" restating the primacy of our national assembly, he was merely reminding us of something that we already knew:
We will also introduce a new law, in the form of a United Kingdom Sovereignty Bill, to make it clear that ultimate authority stays in this country, in our Parliament.
This is not about Westminster striking down individual items of EU legislation.
It is about an assurance that the final word on our laws is here in Britain.
Except that every schoolboy is wrong, and so is David Cameron. That's not bloggertarian hysteria, by the way: it's First year Law at every university in the land.
"Some public comments on the decision of the Court of Justice, affirming the jurisdiction of the courts of member states to override national legislation if necessary to enable interim relief to be granted in protection of rights under Community law, have suggested that this was a novel and dangerous invasion by a Community institution of the sovereignty of the United Kingdom Parliament.
But such comments are based on a misconception. If the supremacy within the European Community of Community law over the national law of member states was not always inherent in the EEC Treaty it was certainly well established in the jurisprudence of the Court of Justice long before the United Kingdom joined the Community. Thus whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. Under the terms of the 1972 Act it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law. [...]
Thus there is nothing in any way novel in according supremacy to rules of Community law in those areas to which they apply"
- Lord Bridge of Harwich, R v Secretary of State for Transport ex parte Factortame Ltd [1991] 1 AC 603, 658
Which brings us back to the old philosophical conundrum; is it possible to "make clear", to use David Cameron's words, something which is not true?
There must be plenty of lawyers in the Shadow Cabinet. If our media are truly the guardians of democracy that they claim to be, I assume they'll be asking them if they've heard of Factortame - as even the most hungover, unshaven, wearing-the-same-pants-for-the-third-day-in-a-row law student has - and whether they think it was Mr Cameron or the noble Lord that was talking out of his arse. I'm not holding my breath.
By way of postscript, I remember asking my European Law professor whether there was any way of overturning the decision, or otherwise reasserting the sovereignty of Westminster. "Oh, yes", he replied breezily. "All you have to do is repeal the 1972 European Communities Act".
Labels: Euroweenies, Liars, Tories
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"All you have to do is repeal the 1972 European Communities Act"
Or amend it. Which is what Cameron was proposing.
Realistic criticism FAIL. Sorry Mr E. Don't do the Labour trolls' job for them.
Or amend it. Which is what Cameron was proposing.
Realistic criticism FAIL. Sorry Mr E. Don't do the Labour trolls' job for them.
Monsieur Eugenides, having read Cameron's full text, I was about to leave a post similar to Jackart's (perhaps slightly more emollient): DC does mention amending ECA 1972, as well as his Sovereignty Bill.
Then we're into Parliament binding its successors, but I think that's a different weakness from your particular charge against the next PM.
[I can barely type this for the tears of nostalgia blurring my eyes. Or is it pain?]
Then we're into Parliament binding its successors, but I think that's a different weakness from your particular charge against the next PM.
[I can barely type this for the tears of nostalgia blurring my eyes. Or is it pain?]
Sorry Jackart, but you can't amend the 1972 act as it's superseded by Lisbon, all you can do is repeal it.
Even then Lisbon will stand and will probably be self amended to prevent such hysteria from the Tories.
Even then Lisbon will stand and will probably be self amended to prevent such hysteria from the Tories.
Your law professor is right. Repeal the 1972 Act and all else falls with it. The whole bizarre, corrupt unaccountable edifice is built only on a treaty. Our sovereignty is not in danger until such time as we give command of the armed forces and the police to the EU.
[Can you tell I belong to the "American Realist" school of jurisprudence? B^)]
[Can you tell I belong to the "American Realist" school of jurisprudence? B^)]
Following the links:
Thoburn v Sunderland City Council [2002](Lord Justice Laws) & Macarthys Ltd v Smith [1979] (Lord Denning) would seem to provide an at least arguable case for the supremacy of the UK Parliament if the UK Parliament said in express terms that it intended to overrule EU Law.
Thoburn v Sunderland City Council [2002](Lord Justice Laws) & Macarthys Ltd v Smith [1979] (Lord Denning) would seem to provide an at least arguable case for the supremacy of the UK Parliament if the UK Parliament said in express terms that it intended to overrule EU Law.
Quiet Man - all European legislation, from the Treaty of Rome right up to Lisbon, is enacted in the UK through the ECA. That is established law. By amending the ECA, legally you could do anything you want.
Whether the ECJ agrees is another matter, but then it becomes like Stalin and the Pope. How many divisions does Strasbourg have?
Whether the ECJ agrees is another matter, but then it becomes like Stalin and the Pope. How many divisions does Strasbourg have?
To be governed is to be watched, inspected, spied upon, directed, law-driven, numbered, regulated, enrolled, indoctrinated, preached at, controlled, checked, estimated, valued, censured, commanded, by creatures who have neither the right nor the wisdom nor the virtue to do so.
To be governed is to be at every operation, at every transaction noted, registered, counted, taxed, stamped, measured, numbered, assessed, licensed, authorized, admonished, prevented, forbidden, reformed, corrected, punished.
It is, under pretext of public utility, and in the name of the general interest, to be placed under contribution, drilled, fleeced, exploited, monopolized, extorted from, squeezed, hoaxed, robbed; then, at the slightest resistance, the first word of complaint, to be repressed, fined, vilified, harassed, hunted down, abused, clubbed, disarmed, bound, choked, imprisoned, judged, condemned, shot, deported, sacrificed, sold, betrayed; and to crown all, mocked, ridiculed, derided, outraged, dishonoured.
That is government; that is it’s justice; that is its morality.
To be governed is to be at every operation, at every transaction noted, registered, counted, taxed, stamped, measured, numbered, assessed, licensed, authorized, admonished, prevented, forbidden, reformed, corrected, punished.
It is, under pretext of public utility, and in the name of the general interest, to be placed under contribution, drilled, fleeced, exploited, monopolized, extorted from, squeezed, hoaxed, robbed; then, at the slightest resistance, the first word of complaint, to be repressed, fined, vilified, harassed, hunted down, abused, clubbed, disarmed, bound, choked, imprisoned, judged, condemned, shot, deported, sacrificed, sold, betrayed; and to crown all, mocked, ridiculed, derided, outraged, dishonoured.
That is government; that is it’s justice; that is its morality.
Mr E, that is a good post. I'd go with what Quiet Man says, I did constitutional law and EU law on my law degree ten years ago, and that just about sums it up.
The great debate is whether repealing the ECA 1972 is sufficient. My view is that it is, because the various treaties we have signed since then operate by way of Public International Law not by way of domestic law.
As I understand it, the ECA is the sole basis for Euro law having precedence.
Repealing the ECA and then enacting laws contrary to Euro law might place us in breach of obligations under various treaties, but those treaties cannot and do not affect the sovereignty of Parliament over domestic law.
As I understand it, the ECA is the sole basis for Euro law having precedence.
Repealing the ECA and then enacting laws contrary to Euro law might place us in breach of obligations under various treaties, but those treaties cannot and do not affect the sovereignty of Parliament over domestic law.
Mr Eugenides quotes: All you have to do is repeal the 1972 European Communities Act.
So Parliament is supreme? Definitely an inconsistency, as others have commented above. The wonders of the law never cease to amaze me.
Also, today is 5th November: a reminder that we once loved our parliament. But, along with St George's Day, Christmas, even Halloween this year, our political class and the officials they empower really are screwing things up. And, it seems, with intent.
Best regards
So Parliament is supreme? Definitely an inconsistency, as others have commented above. The wonders of the law never cease to amaze me.
Also, today is 5th November: a reminder that we once loved our parliament. But, along with St George's Day, Christmas, even Halloween this year, our political class and the officials they empower really are screwing things up. And, it seems, with intent.
Best regards
How to manipulate public opinion electronically
1. Wait for a big Tory announcement
2. Put up lots of comments on blogs claiming to be from Tories disgusted with it.
3. Perhaps fool some proper Tories into agreeing and adding negative comment.
4. Wait for the MSM to pick up and widely spread the "fact" that Tory grassroots HATE the Tory announcement AND D Cameron.
5. Repair to the Spinner's Arms for a well-earned drink or two.
Alan Douglas
1. Wait for a big Tory announcement
2. Put up lots of comments on blogs claiming to be from Tories disgusted with it.
3. Perhaps fool some proper Tories into agreeing and adding negative comment.
4. Wait for the MSM to pick up and widely spread the "fact" that Tory grassroots HATE the Tory announcement AND D Cameron.
5. Repair to the Spinner's Arms for a well-earned drink or two.
Alan Douglas
"...until such time as we give command of the armed forces and the police to the EU."
They're working on it Tom, they're working on it.
Did you not hear the bbc saying the other day that an "EU warship" was on station off Somalia looking for pirates*?
That EU warship was flying the White Ensign and was called HMS something-or-other. But it's an EU warship none the less.
And the EU law permitting foreign police to operate in the UK already exists.
* If they find any, they'll give them a stern ticking off and tell them not to do it again, of course. Anything more would violate their Human Rights under EU law.
They're working on it Tom, they're working on it.
Did you not hear the bbc saying the other day that an "EU warship" was on station off Somalia looking for pirates*?
That EU warship was flying the White Ensign and was called HMS something-or-other. But it's an EU warship none the less.
And the EU law permitting foreign police to operate in the UK already exists.
* If they find any, they'll give them a stern ticking off and tell them not to do it again, of course. Anything more would violate their Human Rights under EU law.
Gosh, the confusion. It isn't easy, this, I admit, but it is astonishing how ready people are to make huge assertions about this aspect of constitutional law on the basis of fundamental misunderstanding.
Your EU law teacher was absolutely right, Mr. E. Nothing has changed the position since then (although I can already predict that people will respond citing Factortame, Thoburn, Maastricht, Lisbon.... none of them change the position).
The doctrine of the supremacy (primacy, if you prefer: same thing) of EU law is an EU law concept, and it applies throughout Europe, including Germany. It is part of UK law, too - because of the ECA 1972, specifically sections 2(1) and 2(4).
And that's the clue to understanding the legal relationship between the UK and the EU. EU law is supreme in the UK because of, and only because, of the ECA 1972 - an Act of Parliament. Factortame was decided as it was because of the ECA 1972; and note that it was the House of Lords, not the ECJ, which suspended the Merchant Shipping Act 1988 having found it contrary to EU law.
Parliament could repeal the ECA at any time - and EU law, including the doctrine of supremacy of EU law, would cease to have any effect whatever in this country. EU law has no effect in this country in and of itself, any more than Russian law does.
One (not legally accurate in the UK at least, but perhaps politically helpful) way of looking at it is to say we have accepted the supremacy of EU law provisionally, but that our constitutional order remains intact in the background and has the power to cancel EU law, ultimately. That way of looking at it would apply to Germany and the UK equally.
David Cameron's National Sovereignty Bill would change nothing - at least if I understand his intentions right, having heard his speech yesterday.
Your EU law teacher was absolutely right, Mr. E. Nothing has changed the position since then (although I can already predict that people will respond citing Factortame, Thoburn, Maastricht, Lisbon.... none of them change the position).
The doctrine of the supremacy (primacy, if you prefer: same thing) of EU law is an EU law concept, and it applies throughout Europe, including Germany. It is part of UK law, too - because of the ECA 1972, specifically sections 2(1) and 2(4).
And that's the clue to understanding the legal relationship between the UK and the EU. EU law is supreme in the UK because of, and only because, of the ECA 1972 - an Act of Parliament. Factortame was decided as it was because of the ECA 1972; and note that it was the House of Lords, not the ECJ, which suspended the Merchant Shipping Act 1988 having found it contrary to EU law.
Parliament could repeal the ECA at any time - and EU law, including the doctrine of supremacy of EU law, would cease to have any effect whatever in this country. EU law has no effect in this country in and of itself, any more than Russian law does.
One (not legally accurate in the UK at least, but perhaps politically helpful) way of looking at it is to say we have accepted the supremacy of EU law provisionally, but that our constitutional order remains intact in the background and has the power to cancel EU law, ultimately. That way of looking at it would apply to Germany and the UK equally.
David Cameron's National Sovereignty Bill would change nothing - at least if I understand his intentions right, having heard his speech yesterday.
Carl
I'm not clear on the circumstances in which later Acts of parliament amend earlier ones.
In Factortame the Merchant Shipping Act sought to overrule EU law. It was ruled that this was not possible. Since amendment of EU law in this area was clearly the intention of Parliament, why was EU law (as incorporated in UK law) not amended accordingly?
I understand the arguments about Constitutional Acts needing explicit repeal, but I thought that Lord Justice Laws' ideas here were not thought to have found wide acceptance among the judiciary.
The argument that the ECA 1972 cannot be amended but only repealed seems novel.
I'm not clear on the circumstances in which later Acts of parliament amend earlier ones.
In Factortame the Merchant Shipping Act sought to overrule EU law. It was ruled that this was not possible. Since amendment of EU law in this area was clearly the intention of Parliament, why was EU law (as incorporated in UK law) not amended accordingly?
I understand the arguments about Constitutional Acts needing explicit repeal, but I thought that Lord Justice Laws' ideas here were not thought to have found wide acceptance among the judiciary.
The argument that the ECA 1972 cannot be amended but only repealed seems novel.
I'm not clear on the circumstances in which later Acts of parliament amend earlier ones.
In Factortame the Merchant Shipping Act sought to overrule EU law. It was ruled that this was not possible. Since amendment of EU law in this area was clearly the intention of Parliament, why was EU law (as incorporated in UK law) not amended accordingly?
I understand the arguments about Constitutional Acts needing explicit repeal, but I thought that Lord Justice Laws' ideas here were not thought to have found wide acceptance among the judiciary.
The argument that the ECA 1972 cannot be amended but only repealed seems novel.
In Factortame the Merchant Shipping Act sought to overrule EU law. It was ruled that this was not possible. Since amendment of EU law in this area was clearly the intention of Parliament, why was EU law (as incorporated in UK law) not amended accordingly?
I understand the arguments about Constitutional Acts needing explicit repeal, but I thought that Lord Justice Laws' ideas here were not thought to have found wide acceptance among the judiciary.
The argument that the ECA 1972 cannot be amended but only repealed seems novel.
Apologies to Mr. E, but I've tried to answer you on my own blog:
http://www.headoflegal.com/2009/11/04/camerons-national-sovereignty-act-what-does-it-mean/#comment-3303
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