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is a common law rule) and doing so raises a critical question: what would the position be if such legislation were ever repealed?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.
In the words of one of the finest judgments ever given on any appeal “I agree and have nothing to add.”
Thanks!
.-= Carl Gardner´s last blog ..Cameron’s National Sovereignty Act: what does it mean? =-.
on the one hand either his understanding of parliamentary sovereignty is the equal of his grasp of the status of the HRA or he has a brain cell and he is making every effort to seriously and misleadingly raise the hopes with radical eurosceptics.
or has someone already said that?…
.-= simply wondered´s last blog ..self-serving scum =-.
Dominic Grieve has I think admirably brought Tory policy on the HRA back from the extreme fringe to something mainstream – the problem is, it’s now unclear what real difference his proposed changes to the HRA can possibly make.
I think Cameron’s European policy is similar in many ways. Parts of it are easy to understand, and make sense in Conservative terms: repatriating social policy, for instance. Whether you agree with it or not (I don’t, but that’s not the main point as far as I’m concerned), it is coherent.
The National Sovereignty Bill is much less coherent, though. At best, it would “clarify” the existing position. There’s no point in that. At worst it will raise hopes that it will repatriate powers in itself, which it won’t do. And I think it’s seriously risky in political terms for Cameron, as people like Bill Cash will try mad line-by-line amendments to force the UK out of the EU, in effect. The Bill could lead to trench warfare, John Major style, and to Cameron being plagued by the bonkers and blazered Europhobes just as badly as Major was.
Taking a view from the Southern side of the EU, the Tory contortions on Europe are amusing, to say the least. When will they learn that membership in the club involves adherence to its rules, once and for all? If they want out, fine, let them say so, but the danger of the lunatics taking over the loony-bin is clear and present, so they can’t say it. In the meantime, they’ll carry on flirting, trying to grab every available vote.
Carl,
The danger of the Cameron proposal is well stated and deserves as much attention as possible.
Andrew B-C,
It’s perfectly fair to say that membership of a club requires adherence to the rules. The problem with this club is that the committee has forgotten (if it ever accepted) that the role of a club committee is to serve the members, not to dictate to them. If the committee had not changed the rules of the club in ways which are clearly opposed by the rank and file membership (the electorates of the EU member states), and gone though every possible contortion of their own to avoid the members having their say, then we would not be in this difficult position.
In the words of one of the finest judgments ever given on any appeal “I concur.”
Sadly, Mr Cameron has not come across well in all this. I know that he is not a lawyer but he does have access to many who are and who could advise him better.
Like it or not, the Lisbon Treaty now binds the United Kingdom in international law and, in my opinion, we would be better embracing Europe rather than always adopting this risible sceptic stance.
“he will raise Europhobe hopes without having any real effect on the relationship between EU and UK law.”
Are we underestimating him – perhaps that’s exactly what he intended to do.
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.
That would indeed be novel, but I’ve not said that. It certainly can be amended, or repealed. Here’s a mini-essay.
You’re also right about Laws LJ’s theory of “constitutional” statutes (in the Thoburn case) not being impliedly repealable. It’s fair to say his conclusion that the ECA 1972 cannot be impliedly repealed is widely accepted; it’s his premise, that this is because it’s “constitutional” in nature, that isn’t.
What follows is my own view – anyone’s welcome to explain why they think it’s wrong.
The ECA 1972 can’t be impliedly repealed not because of EU law but because of its own wording. This is the key point to understand. Section 2(4) subjects all other legislation, past and future, to the ECA 1972, which (in section 2(1)) imports into UK law all of EU law, including the doctrine of EU law supremacy. The result is that all future legislation is subject to EU law and its supremacy because of the words in section 2(4) of the ECA 1972. Sorry to labour the point; I’m trying to be crystal clear.
You could try to legislate contrary to EU law simply by enacting provisions contrary to it but without expressly amending the ECA 1972 – the technique used in the Merchant Shipping Act 1988. But the problem with that is that you have presented the courts with a conundrum.
They have on the one hand an Act of Parliament that says [x]; Parliament’s intention is clearly that [x]. They also have an Act of Parliament saying in all future legislation [x] is to be replaced by [y] (where [x] and [y] are incompatible). Parliament’s intention is clearly also that [x] should be read as [y]. Which Act takes precedence? You have forced the courts to choose, since no third way is logically possible.
The traditional “tie-breaker” would be to say the later Act prevails – i.e. that it impliedly repeals the earlier Act to the extent of the conflict between them. But there’s a problem with that as regards the ECA 1972 because, if you do that, it’s difficult to work out what if anything s2(4) ever meant, legally. If you say it’s impliedly repealable by something like the Merchant Shipping Act, then you’re saying it never did and never could have conditioned subsequent legislation in the way it purported to do.
An important point to understand, this, and one often missed. Either way, you have forced the courts in effect to disapply one of the Acts of Parliament. If you simply say the ECA 1972 is impliedly repealed, then arguably you have deprived it of having had any meaning, ever, and in effect you are choosing to disapply it. That may be okay if you’re one of those who claims Parliament “never had competence” to enact the ECA 1972, but that would be an unorthodox, even eccentric, view of constitutional law. The most basic rule of the constitution is that Parliament’s legislative competence is unlimited.
So, how to resolve all this? How to reconcile the conflicting intentions of Parliament in two mutually contradictory Acts? The courts are driven to the conclusion that, unless it expressly repeals its order that [x] should be read as [y], Parliament still intends that [x] should be read as [y]. Otherwise, Parliament’s order that [x] should be read as [y] never meant anything at all. Let’s think that through again in other words. Two act clash. One of them clearly intends to have an effect in the real world, but does not make it clear it intends to overrule the first Act in the event of conflict. The other (the ECA 1972) clearly does intend to operate on the other and to overrule it in the event of conflict. It makes sense – and you’re forced to choose, remember – to see the Act that clearly does intend to overrule the other as being the one that prevails.
Of course, if Parliament did repeal the [x] means [y] rule, there’d be no difficulty. Parliament would intend [x] and that [x] not be subject to the “[x] means [y]” rule. Its legislation would not be contradictory, its intention would be clear, and the courts would not be faced with any conundrum. That’s why, if you want to legislate contrary to EU law, you need to expressly amend the ECA 1972.
To complete the picture. It’s true that this modern state of the law involves a modification of the implied repeal doctrine since cases like Ellen St. Estates, which also involved an earlier Act which attempted to colour a later Act. In those days, the courts preferred the later Act in any event. So there has been a change. I think the reason is, again, that simply sticking by the old Ellen St. approach would have made a nonsense of what was clearly Parliament’s intention in 1972. The courts do try to give effect to Parliament’s intention, not frustrate it. They’ve actually got better at that, and less pig-headed about literalism, over the course of the last hundred years. That may explain the change. If Parliament ever changed its intention about the [x] means [y] rule, it could signal that easily and clearly by expressly amending it.
Finally: the ECA 1972 isn’t the only [x] means [y] rule in legislation. Section 3 of the Human Rights Act 1998 has a similar effect – or else no effect at all – since it governs the meaning of all subsequent legislation. The courts have unsurprisingly given effect to Parliament’s clear intention, and read it as coloring later legislation. It follows that it can’t just be impliedly repealed by later legislation that on its face says [x]. Those who know section 3 well will know it’s not exactly the same as the ECA 1972, and that sometimes [x] prevails over section 3, but the principle is the same: you can try legislating that [x], but unless you expressly amend or disapply s3 as well, s3 will often result in making your later legislation mean [y]. If it wanted to, Parliament could amend the ECA 1972 to make it work in the slightly softer way the HRA does.
It’s the wording of these provisions that has the effect of displacing the possibility of implied repeal; it’s actually not to do with their subject-matter or status. There seem to be many Eurosceptics who dispute this and are prepared to argue ad infinitum that the ECA 1972 can be impliedly repealed – I’ve never understood why, since the view I’ve explained involves no diminution of Parliamentary sovereignty, since both William Hague and I think Bill Cash seem to agree with it as far as I can tell from what they say in Parliament, and since express amendment or repeal is so easy for Parliament if it really intends that. The challenge for anyone who claims the ECA can simply be impliedly repealed – and people who argue that often claim to be champions of Parliament and its intention – is to explain why they choose to give no effect at all to Parliament’s intention in section 2(4) of the ECA 1972, which is unamended in any relevant respect, and remains law.
Carl – you have given a lengthy and detailed explanation of the point that the ECA 1972 could not be the subject of implied repeal. Section 2(4) requires existing Acts and any subsequent Acts to be construed and to have effect subject to the Treaties [see section 2(1)] and to other community obligations [see section 2(2)]. That 1972 parliamentary statement would mean nothing if implied repeal were possible. “Implied repeal” is therefore ruled out because of the wording of the 1972 Act. I think that must be right. It is certainly a very logical position.
The 1972 Act certainly recognised the Treaties and the jurisprudence of the European Court of Justice which by the end of the 1960s had established the supremacy of EU law doctrine – e.g. Van Gend en Loos etc. Someone much much more eminent than I said that EU law has an “existential need for supremacy.” Unfortunately, it took the Merchant Shipping Act 1988 and the lengthy and highly costly Factortame legislation case to drill this point into the British judiciary and legal profession.
Interestingly, the Lisbon Treaty makes express provision for a member State to leave the EU. [It has always been practically possible – e.g. Greenland]. If that were the will of the British people then Parliament, in the exercise of its sovereignty, could clearly legislate for exit (as recognised in the MaCarthys case]. Thus, the only referenda which would make any sense would be (a) a referendum asking the people to say yes or nor to continuing membership and (b) a referendum about whether the UK should accede to any new and future Treaty. A (b)-type referendum could only sensibly be held once the Treaty had been negotiated and its final terms known. Hence, a (b)-type referendum could only be held between the end of negotiations and ratification of the Treaty.
A referendum on the Lisbon Treaty – now a “done deal” – is an absolute nonsense.
Carl – I agree completely with your legal analysis but I doubt that David Cameron does not understand this already and it is perhaps harsh to say that he is misleading Euro-sceptics in his party. Politicians often make dubious legal interpretations, as the Tories have already done with the Human Rights Act, and they are not aimed at laywers but rather the public. The ethics of doing so depends on your view of spin. This is one of Sir Humphrey’s irregular verbs – I spin, you mislead, he lies.
The test of Cameron will be what he does next. If, having been elected, he says that he has now examined the problem in more detail and taken legal advice and realised that it is impossible, this will be a good piece of politics. He will have shown his commitment to sovereignty and been seen to have pulled out all the stops in trying to preserve it. If, however, he enacts legislation as a piece of spin, this is, in my view, completely beyond the pale, rather like asking scientists to spin the results of their research, as has happened recently.
.-= James Medhurst´s last blog ..Grainger v Nicholson =-.
Jesus Christ – my head hurts!
Can you tell us the answer in plain simple English: If there is a popular mandate through the ballot box here in the UK can we leave the EU? Yes or no? If the answer is no is democracy dead?
passing by:
yes;
no.
there ya go – don’t worry about all the implied repeal crap – that’s just to keep us lawayers busy in case we start messing with stuff we shouldn’t.
just remember parliament can do what the hell it likes and the courts do what the hell they like while pretending they are doing exactly as parliament tells them. that is because they are
a) not technically supposed to do what they like,
b) cleverer than mps and
c) not elected.
easy really. also gawd only nose what the tory govt will do, but they certainly won’t leave europe because some of them have managed to work out that, if we do, it will make the current economic situation seem like a picnic.
.-= simply wondered´s last blog ..self-serving scum =-.
Could one not do a Rumsfeld and argue that there is a difference between implied implied repeals and unimplied (ie explicit) implied repeals? To wit, that if it was the intention of Parliament to override the 1972 Act that would be good, but that the wording of the 72 Act gets its force from blocking over-rulings where that was not expressly foreseen and intended by Parliament?
This would save the efficacy of the 1972 Act and allow over-rulings. Or am I wrong? I haven’t studied this yet, in my defence.
What you’re talking about is not a million miles away from the way section 3 of the Human Rights Acts works. It requires all other Acts to be read so as to comply with Convention rights, “so far as possible”; but there is a point at which this becomes impossible and the incompatible reading prevails. This point comes (the courts have decided; Parliament gave no guidance in the Act itself and could of course change the position judges have arrived at) when judges would otherwise have to overturn a “fundamental feature” of the later Act.
Yes, that could work, as the HRA has shown. But (a) you’d need to amend the ECA 1972 so that it reads like the HRA and (b) arguably one of the problems with the HRA is that it’s not easy to decide what a “fundamental feature” is, or to know when the courts will find one.
If your answer to that is “Parliament could make clear what it regards as a fundamental feature!” then you’re agreeing, in effect, with my position that implied repeal isn’t good enough. Things simply need to be spelled out clearly by Parliament.
Ultimately, all this discussion is about is whether Parliament has a right to expect the courts to read Parliament’s mind unerringly without Parliament making its intentions clear in its Acts; or whether Parliament should just make its intention clear to the courts so as to avoid any confusion in the first place. I think the latter is necessary; some people (Eurosceptics I assume) seem instinctively to think Parliamentary sovereignty depends on insisting on the former. I’ve never understood why they think that.
Passing By:
Yes or No? – Yes. Parliament can do this whether or not there’s a popular mandate.
Is democracy dead? – See answer to the above.
If only Eurosceptics would keep things as simple as that! Then I wouldn’t have to write essays about implied repeal.
hence the ‘simply’ in my name…
i am, as ever, happy to help. it may or may not be right but it doesn’t take long to read – it’s like the hitchiker’s guide to the galaxy really…
.-= simply wondered´s last blog ..self-serving scum =-.
Surely there’s no need to repeal any part of the 1972 Act in order to allow a later Act not to be affected by it? All you need to do is to say in the later Act that Parliament does not intend it to be affected by the 1972 Act.
If the Merchant Shipping Act had said something like: “This Act shall not be subject to s. 2(4) of the European Communites Act 1972”, then all would have been well and good, and the outcome of Factortame would have been different?
A couple of points in response, David. It’s an interesting technical legal point; but I want to stress again before I answer that I think this question is of no political significance. I think there are some Eurosceptics who think it’s politically important that what you’ve said is right. I don’t understand why they think that.
Okay, to the substance. You’re right; that probably would work. Almost certainly would. Indeed, I wrote in a post last year saying I thought that could be done:
So if I’ve given the impression a textual amendment to the ECA 1972 itself is absolutely necessary (and looking at my earlier comment, perhaps I did; sorry), then I accept that went too far. But that wasn’t the central point I was making.
What I was arguing against is the idea that the s2(4) of the ECA 1972 can be impliedly repealed. The wording you’ve suggested is of course express provision that the later Act should operate on the 1972 Act – in other words, that the [x] means [y] rule should be disapplied. That’s not the same as implied repeal at all. It’s non-textual amendment, but it is express provision modifying the legal meaning of the ECA 1972. I think we’re agreed.
I do think textual amendment is a preferably technique, though. After all, this non-textual method still leaves an old statute which on its face contradicts our new one. Yes, I think it’d work, but wouldn’t it be better, and clearer, and wouldn’t it make the outcome in the courts absolutely certain, to make a textual amendment to it? Or am I just being reflexively defensive of a position I think I may have allowed myself wrongly to appear, at least, to support? Maybe. But there’s isn’t actually any advantage in avoiding textual amendment, or in wanting to avoid doing so, is there?
Anyway, we’re into the finer points of drafting technique now I think.
now you’ve got me thinking. would any act that declared itself not to be subject to the eca require a DoI?
my head hurts.
.-= simply wondered´s last blog ..self-serving scum =-.
I am in two minds about Douglas Carswell and Daniel Hannan, his MEP sidekick. They do seem to be shlgltiy braver than John Redwood and some of the other supposed Eurosceptics. Do they genuinely believe that by remaining in the Tory party that they can engineer our exit from the EU, or are they acting as decoys to deflect attention from the real opposition? They are all career politicians so I suspect the latter.