Sovereignty clause? Not so fast…

8 October 2010 by

In his speech to the Conservative party conference, The foreign secretary William Hague has outlined the government’s plans for securing the sovereignty of parliament against the pressure of the European Union. He said:

A sovereignty clause on EU law will place on the statute book this eternal truth: what a sovereign parliament can do, a sovereign parliament can also undo … this clause will enshrine this key principle in the law of the land.

One commentator notes: “Tories plan fresh attacks on human and workers’ rights”. Another that there would be “subtle legal perils”.

But to what extent will such a sovereignty clause make any difference to the assertion of rights in the domestic courts that lie outside national law, but are contained within EU law – economic and social rights, for instance? The Lisbon Treaty (TEU) provides for a recognition of such rights as are set out in the Charter of Fundamental Rights. This Charter, though not itself part of the treaty, nevertheless has the same legal effect as the TEU by virtue of Article 6(1).

There is an important proviso to this. The Charter does not extend the competences of the EU. Individuals are not be able to take member states to court because they have failed to uphold the rights in the Charter unless the member state in question was implementing EU law. But where EU law is engaged, the Charter could be directly enforceable in national law, as was demonstrated by a decision earlier this year in the Court of Appeal:  see our post on the as yet unreported R (on the application of S) (Claimant) v Secretary of State for the Home Department (Defendant) & (1) Amnesty International & AIRE Centre (2) United Nations High Commissioner for Refugees (Interveners) (2010).   The question was whether the removal of an Afghan asylum seeker to Greece under Regulation 343/2003 was incompatible with his rights, not just under the ECHR, which is part of UK domestic law, but also under the Charter, which is not (when these rights were attached to the Maastricht Treaty in 1992 as the Social Chapter, Britain used its opt-out to avoid them becoming part of British law.)

On this basis, Cranston J in the High Court said that these rights were not directly enforceable against the United Kingdom, that the Charter was an aid to interpretation only.  On a concession by the Home Secretary, the Court of Appeal ruled that the Charter can be directly relied upon in the United Kingdom. A reference has been made in this case to the ECJ, but in any event what it illustrates is that what really matters is not the precedence of parliamentary sovereignty (whether expressed in legislation or the common law) but political maneuvering; that concession by the Home Secretary was all-important.

Whatever resistance member states wish to make to directly effective Community law has to be made at an EU level – by derogation, or opt-out protocol – not by reference to national law. As long as the 1972 European Communities Act (ECA) stays in place, the fundamental mechanism of direct applicability applies:

Every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior to or subsequent to the Community rule (Simmenthal, Case 106/77).

Since it is Community law, not national law, which decrees the primacy of EU law. Factortame has established beyond doubt that the priority of Community law occurs by virtue of Community law itself, although subsequent cases have questioned whether it operates only via the ECA (The Metric Martyrs case (Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) and the argument over whether the ECA is a “constitutional” or “entrenched” law which cannot be repealed by implication is still unresolved.

Of course, the principle of parliamentary sovereignty is an inalienable component of the common law. This means that Parliament cannot bind its successors by stipulating against repeal, wholly or partly, of the ECA. It cannot stipulate as to the manner and form of any subsequent legislation.  But in the absence of a written constitution the UK cannot make an explicit legal affirmation of its sovereignty that would affect the way the courts interpret EU law as incorporated by the ECA.

We cannot, in other words, emulate the German position by legislating for parliamentary sovereignty. Germany has, as part of its Grundgesetz, a number of conditions for and limitations on the transfer of sovereign powers to the EU – the Bundesverfassungsgericht has reserved the power to ensure that the Community institutions do not exceed the sovereign powers transferred by the German law ratifying the Treaties (the so-called Solange (1) judgement of 29-5-1974 (1974) CML Rev. 540. Without such a constitutional structure, and a Constitutional Court to enforce it, the UK has no equivalent power of review, and nothing in ordinary parliamentary legislation is going to change that, apart from repeal of the ECA.

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