What Boris told us about the “sovereignty plan”

Since I wrote about David Cameron’s “sovereignty plan”, it seems to have been forgotten. It’s clear the idea was aimed at keeping politicians in the Remain camp, and has failed.

@carlgardner I understand it is an utter mess, and that it is hoped we all forget it ever happened.#journalism

— David Allen Green (@DavidAllenGreen) February 29, 2016

But what happened is still of interest, and we learned a little on yesterday’s Marr show from Boris Johnson. Here are his remarks, taken from the BBC transcript but edited to reflect precisely what he said (from 53’37” in the video; an audio recording is here):

BJ: … in the days leading up to that summit, and indeed during while the summit was going on, there was a huge effort going on, which I was actually involved in, to try to make sense of the so-called sovereignty clauses. And a huge intellectual effort went into creating this language by which we could somehow ensure that the—our courts, our Supreme Court, our House of Commons, could overturn judgments of the European Court of Justice if we felt, if Britain felt that they were in some way capricious or if they were going beyond the Treaty …

AM: Exceeding their powers.

BJ: Exceeding their powers. Exactly. And so finally we had some language that seemed to have some bite, and seemed to work. And I was very pleased with it, it went back to the—

AM: So at that moment might you have stayed in?

BJ: We went back to the government lawyers and the government lawyers said—just blew up. And they, you know, they said this basically voids our obligations under the 1972 European Communities Act, it doesn’t work, we can’t—and that is, I’m afraid, the reality. You cannot—you cannot express—

AM: That was the moment when you decided you had to go this way?

BJ: You cannot express the sovereignty of Parliament and accept the 1972 European Communities Act. There’s no way of doing both at the same time.

A number of interesting points arise from this. When Johnson talks about

the so-called sovereignty clauses

he surely can’t mean a special British opt-out proposed to other member states at EU level. Nothing along these lines was mentioned in President Tusk’s published proposals. So he must mean draft clauses for a Bill to be put before Parliament. He also seemed not simply to be talking about an early stage of policy work, where you’d be agreeing not on language but on the principles you were trying to achieve. He said

a huge intellectual effort went into creating this language

which makes you wonder: by whom? Was this something goverment lawyers were themselves tasked with? If so, the “clauses” would have been drafted by Parliamentary counsel, implying the project had advanced quite far. Johnson talked of his preferred language going back to government lawyers, which suggests they were involved at an earlier stage.

The alternative is that one or two politicians, perhaps helped by outside lawyers, simply drafted something themselves, perhaps after an initial policy discussion. Johnson explained that his idea was to

ensure that the—our courts, our Supreme Court, our House of Commons, could overturn judgments of the European Court of Justice if we felt, if Britain felt that they were in some way capricious or if they were going beyond the Treaty

but which did he mean? Should the Supreme Court or the Commons have this power? The plan can’t have been to give it to them both: that’d be an obvious recipe for confusion. And anyway, Parliament can already make whatever law it likes. So why couldn’t he say who the power would go to? This suggests muddled thinking.

Johnson said the power would be available where judges at the European Court of Justice were

going beyond the Treaty … Exceeding their powers.

But it’s hard to imagine how the ECJ could “exceed its powers” in the sense of ruling on a case it has no jurisdiction to hear, or imposing a fine it has no power to make. That basically never happens. He may have meant a situation where our courts think the ECJ has got EU law wrong, by interpreting the EU Treaties in too “federalist” a way.

The problem with that is that the entire EU legal order is based on the assumption that the ECJ, as the ultimate arbiter on EU law, “is always right”. All legal systems depend on this principle. Indeed there is case law from the ECJ (“case law” being a fundamentally British legal concept by the way, which has influenced EU legal thought over the years) telling us that a national Supreme Court breaches EU law if it fails to apply an ECJ ruling. So it’s no wonder Johnson tells us that

We went back to the government lawyers and the government lawyers said—just blew up.

Who were these lawyers? I wonder. If the government legal machine had done some drafting, it’s inconceivable that the Law Officers weren’t involved. In which case it may have been the Attorney General who “blew up”. But whoever the “government lawyers” were, they were basically right when

they said this basically voids our obligations under the 1972 European Communities Act, it doesn’t work

though even this has come out somewhat garbled. The legal obstacle isn’t, ultimately the 1972 Act, which can be amended. The obstacle is EU law itself. Britain can’t simply create a unilateral legal right to disobey the referee, while still playing the game. It’s a principle that would apply in just the same way if Britain were in the European Economic Area, and that applies in the World Trade Organisation, or the UN Convention on the Law of the Sea. But Johnson’s quite wrong, actually, to leap from that illogically to saying

You cannot express the sovereignty of Parliament and accept the 1972 European Communities Act

a remark that betrays a superficial understanding of Parliamentary sovereignty. Making EU law our own (which the 1972 Act does) doesn’t end Parliamentary sovereignty, any more than ratifying any other treaty does.

There was clearly some discussion—perhaps even a government draft—of clauses giving some new power (for instance) to the UK Supreme Court to depart from or question an ECJ judgment in exceptional circumstances, such as where it was thought Parliament cannot have intended EU law to change our constitutional fundamentals. That would be based in part on an (in my view misconceived) analogy with German constitutional law but also in part on reasoning by Supreme Court Justices themselves. Something along those lines could be ultimately compatible with EU membership, and might have been worked up within government.

Presumably, Johnson proposed giving that a stronger “bite” that was simply incompatible with EU law in principle, and that the PM could not agree. Talks must then have broken down, although Cameron still thought something could be announced after further work that would sway some referendum waverers. Now, even that seems to have been shelved.

What a remarkable episode.