New EU Bill seeks to enshrine British sovereignty

12 November 2010 by

The much-debated “sovereignty clause” has now been published in the European Union Bill.

As predicted by our previous post on the subject and the wealth of commentary elsewhere, the declaratory provision does nothing more than set out, in unambiguous terms, the common law principle of parliamentary sovereignty; the principle that Parliament, being sovereign, cannot abandon its own sovereignty. It has no effect on the rights and obligations conferred by EU law. It simply serves as a reminder that the enforceability of these rights and obligations are dependent on the continuing survival of the European Communities Act 1972, and nothing more.

The beguiling science of direct applicability and direct effect, with all the erudition that has accumulated around these doctrines, changes the position not one jot. As Laws LJ said in the Metric Martyrs case, Parliament

cannot stipulate against implied repeal any more than it can stipulate against express repeal. Thus there is nothing in the ECA which allows the Court of Justice, or any other institutions of the EU, to touch or qualify the conditions of Parliament’s legislative supremacy in the United Kingdom. Not because the legislature chose not to allow it; because by our law it could not allow it. [para 59]

The question of why this declaration is deemed necessary is a political rather than legal one. But it is at least arguable that, without a robust constitutional court to remind governmental decision-makers of their limitations, we may have something in here that reins in the “creeping competence” of EU institutions before months of expensive litigation does the job.

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