UK sovereignty—testing the waters

What are the aims of the United Kingdom Parliament (Sovereignty) Bill? Maurice Mendelson QC of Blackstone Chambers considers some of the issues.

Original news

The Parliament (Sovereignty) Bill received its first reading on 29 November 2013 in the House of Commons. The Bill, which is a private member’s Bill sponsored by Mr William Cash, makes provision for the supremacy of sovereignty of the UK Parliament in relation to the UK’s membership of the EU.

Why has the Bill been raised?

This is a private member’s bill introduced by William Cash MP, a leading Conservative Eurosceptic. It is one of a number of bills proposed by Eurosceptics over recent years. They are concerned about encroachments on the sovereignty of the UK and its Parliament through EU law and the decisions of the European Court of Justice in Luxembourg, as well as the European Court of Human Rights in Strasbourg.

Though there have been recent moves on the part of the judiciary to interpret the Human Rights Act 1998 as not requiring the Supreme Court to follow Strasbourg decisions if they think they are erroneous, a very recent pair of decisions of Langstaff J in the Employment Appeal Tribunal held that they are binding, as EU law, under the European Union’s Charter of Fundamental Rights, which mirrors the European Convention on Human Rights (ECHR).

What is its intended effect?

Unlike some other bills, this one is confined to EU law and does not extend to the ECHR itself. It is intended to alter the consequences of the European Communities Act 1972 (ECA 1972) by considerably reducing EU law’s impact on UK law, both for the present and into the future, and indeed, to some extent retrospectively, because it requires its provisions to be applied by the courts as if the proposed Act had always been in force. The Bill:

• enables a Minister to make an order disapplying an EU measure, or part thereof
• requires a Minister to make such an order if each House of Parliament passes a disapplication motion (supported by at least 100 members of each House)
• if a similarly supported motion is passed in each House, the relevant Minister can be required to vote against an EU initiative or proposal
• if such an initiative or proposal is nevertheless passed by the EU (through majority voting), it will not be binding in the UK
• it proposes that nothing in the European Charter of Fundamental Rights of the EU will be legally binding in the UK
• it attempts to entrench the new Act by providing that no future Bill contravening or amending it will be law unless passed by both Houses of Parliament and a referendum

Do we need it?

There has been some concern about some controversial decisions of the Strasbourg court, and these concerns have been heightened by the Employment Appeal Tribunal (EAT) judgments. More generally, some consider that European Union law is trespassing in domains where it was never intended to reach when the ECA 1972, and the UK Parliament is being bypassed by a supranational body with questionable democratic credentials. Whether we need this Bill (or something like it) is ultimately a political question.

What is the current position in the UK regarding the supremacy of EU law?

EU law is supreme in the UK, overriding even Acts of Parliament. The supremacy of EU law over national law had been established by the European Court of Justice even before the UK acceded in 1972—and so we joined on that understanding, as the House of Lords recognised in the Factortame series of cases.

What is the current position regarding the sovereignty of Parliament?

Even Acts of Parliament have to yield to contrary European law. However, outside this sphere, Parliament remains sovereign. And because, ultimately, it is through ECA 1972 that EU law prevails in the UK, it is open to Parliament to repeal or amend ECA 1972 (though it could not do so and remain in the EU).

Will the Bill change either of the above?

It aims to erode the supremacy of EU law in the UK by making particular provisions subject to disapplication by Ministers of their own volition, or following a resolution of both Houses, and by requiring Ministers to vote in the EU as directed by Parliament. It also specifically seeks to deprive the European Charter of Fundamental Rights of legal force. So to that extent it aims at restoring the sovereignty of Parliament. However, paradoxically it also seeks to fetter the sovereignty of Parliament, by entrenching the present (would-be) Act so that it cannot be amended or repealed without a positive vote, not only in both Houses, but also in a referendum. Whether such a provision would indeed bind a future Parliament is a vexed question.

What are the next steps for the Bill?

It has had its first, formal reading, but will be debated for the first time only on its second reading on 17 January 2014. Judging from the fate of similar bills, it is unlikely to pass—but it will provide another opportunity for Eurosceptics to show their strength and, perhaps, drum up further support.

Interviewed by Anne Bruce. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

This article was first published on Lexis®PSL Dispute Resolution on 10 December 2013. Click here for a free 24 trial of Lexis®PSL.

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