Mr E and Factortame...

A brief, a very brief, word on David Cameron’s proposed Sovereignty Act.  Mr Eugenides here provides what might be termed the classical view of Parliamentary Sovereignty in light of the Factortame litigation.  I think he (and, to be fair to him, many academic lawyers) have misinterpreted the ratio in Factortame.  What it rules is that, in the absence of explicit wording to the contrary, where European and UK legislation are in conflict European legislation will apply.  It did not rule on what would happen if there were specific wording to that effect.

Further, Mr E mentions his old law professor’s remedy – repeal the ECA 1972.  One thing on which all constitutional law in this area is agreed on is that the well and fountainhead of all EU law in this country is the ECA 1972.  The only method for legislation to be applicable in the UK is for it to be enacted by Statute through Parliament.  Since much EU law has direct effect, and need not therefore always be enacted through statute, the jurisprudential position has always been that it takes effect through the ECA.

What Cameron appears to be proposing is amending the ECA to include a referendum clause on future transfers of sovereignty (and specifically on the Euro) and introducing a Bill stating that ultimate legal sovereignty is inalienable, and rests with Parliament.  There are two things to say about this really.  The first is that if this is possible, it is probably unnecessary.  If Parliament can rule that it is sovereign, then it already is.  If it isn’t, it can’t – and no amount of legislation can make it so.

The second, however, is that by amending the ECA, Cameron is seeking to affect the flow of European law at the source.  If, as all British judges so far have affirmed, the ECA is the source of all European law, then an amendment to it that states that British law will ultimately be superior must, by sheer force of logic, stand.  Cameron is seeking to legislate an answer to a question that has, so far, been strenuously avoided in court.  Indeed, the only direct reference to this question in court was an obiter reference, long ago, by Lord Denning (who would not, I suspect, be considered a representative opinion) in Macarthys Ltd v Smith:

If the time should come when our Parliament deliberately passes an Act — with the intention of repudiating the Treaty or any provision in it — or intentionally of acting inconsistently with it — and says so in express terms — then . . . it would be the duty of our courts to follow the statute of our Parliament.

This question was deliberately ducked in Factortame, where it was accepted that any divergence between UK and EU law must be considered accidental.  The latest important case on this matter was Thoburn v Sunderland (the Metric martyr case) where, in an admittedly shonky judgement that tore great holes in constitutional law as we know it, Laws LJ said the following:

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.

It is my opinion that, if a British Government actually desired it, legislation in deliberate breach of EU law would stand.  The courts are hamstrung by their need to bring everything in through the ECA.  Amend that, and you take away the last figleaf for judges to hide behind.  They would have to make up their minds as to whether the UK Parliament was truly legislatively supreme in the UK – and if not, where the authority for this constitutional revolution comes from.  It’s not enough to cry Factortame as a debate stopper…