That 'Sovereignty' Bill

I'm bored and avoiding work, so let's have a look at this week's 'EU no surrender bill'.

There is a longstanding clash between what the British political classes tell themselves and reality, when it comes to European Union matters. The European Union has believed since 1962 that it is engaged in the construction of a New Legal Order (Van Gend en Loos) capable of overriding local constitutions (Costa v ENEL, Simmenthal, and Factortame) and which must be read into all state laws if possible (Von Colson, Marleasing and Thoburn v Sunderland). The European Court of Justice simply views membership of the club as denoting obedience to the rules regardless of any special pleading.

British politicians appear to have convinced themselves that their rubber-stamp parliament, the sensible part of which admits that it cannot control the EU, is still in some sense sovereign. Like some raddled Hollywood star of the fifties, the place keeps asserting its sovereignty whilst texting its agreement to ever more desperate appearances to its sleazy agent. Her capacity to define terms is gone, and whilst she still might--might--get a folding chair with her name on it, it'll be nowhere near the Director and the Chinese will need it for their six o'clock shoot.

Well, OK, I'm exaggerating. No texting is involved. Most MPs, after all, need their right hand free.

Anyway, the latest attempt to delude parliament into thinking that it is sovereign is in the traps, in the form of the Sovereignty Bill 2010, due to embarrass our unshameable excuse for a Prime Minister later this week.

Clause one seems fair enough; the sovereignty of the UK Parliament is affirmed. What does that mean, though? Properly speaking, the authority enjoyed by the House of Commons stems legally from the Crown-in-Parliament, and politically from the people. No Judge is ever going to take a vague term like that and dare to read an expansive discretion to do whatever parliament wants into it; in fact, it is more likely that a phrase like that will strengthen judicial review, since a sovereign parliament will have tasked Judges implicitly with controlling the executive outside of it by reading into its laws whatever the Judges think fit. That's a bollocks clause which will warm many legal firesides for some time.

Where does it leave the monarch, and those wielding the monarch's powers, too? Up till now, the courts have left the Royal Prerogative more or less alone. That's the power which Ministers wield over immigration and the army and political appointments and so forth. What if Parliament's intentions, as expressed in human rights or freedom of information laws, was ever indirectly but implicitly challenged by ministers? Wouldn't the sovereignty bill strengthen the Judges against the Crown?

Clause Two, then.
No Minister of the Crown shall sign, ratify or implement any treaty or law, whether by virtue of the prerogative powers of the Crown or under any statutory authority, which—

is inconsistent with this Act; or

increases the functions of the European Union affecting the United Kingdom without requiring it to be approved in a referendum of the electorate in the United Kingdom.

Any Treaty or Law? NATO? The WTO?

Firstly, there is no need to sign any new Treaty increasing the functions of the EU; passarelles (devices to unanimously and legally extend power), Article 122 of the Treaty on the Functioning of the EU, and the allowed extension of Qualified Majority Voting in the Council can do that. The text of this sovereignty bill will not preclude any of it. Things like defence and the police are largely outside of the Treaty at the minute, but they--as the Anglo-French aircraft carrier programme shows--do not require any treaties or laws to be integrated anyway.

Secondly, if a minister exercises sovereignty on behalf of the crown and signs a treaty which is then subject to debate in the commons, and in the understanding that the commons could refuse to agree to it if it changes primary law, how is the minister being inconsistent with parliamentary sovereignty?

A Treaty that changes law must be subject to a vote already. A Treaty that does not must be subject to a debate within three weeks. So, I ask again, how could signing a treaty that extends power in the knowledge that this will be put to parliament anyway compromise the sovereignty of parliament?

These are deep waters. Parliament, in theory, can do anything it wants, except bind a future parliament. Nevertheless, 'super conventions' arise practically, which preclude change--no one would ever think of taking the vote away from women, for instance, or returning to 1831 constituencies. What is so special about the EU's effect on sovereignty that a whole bill is needed when, even if a treaty purports to limit parliament, it cannot?

The EU is not an international body. It is more of a sort of mixture of coral and foam. If in it, states must accept that they are subject to a super-rule that they won't, when their arguments are exhausted via the proper procedures, refuse to implement its laws. If they cannot promise this, they should leave. What on earth is the point of saying 'well, we will obey the rules but we reserve the pointless non-right not to without leaving?'. Not only is that discourteous, it is stupid.

An alternative, of course, would be to take the Bill as applying to any treaty, and then ask if any extension to NATO membership, or WTO rules, or the UN Treaty should be subject to a referendum. Let's see how much time that wastes with a well-funded trade union or newspaper campaign behind it.

The thing is a dog's breakfast. More legal money before the Judges ultimately back down and throw the whole thing back to parliament. Next?

This Act shall have effect and shall be construed as having effect and deemed at all times to have had effect by the courts of the United Kingdom notwithstanding—

the European Communities Act 1972;

any exercise of, or rule of prerogative, or rule of international law; and

any Act of Parliament, whenever enacted, unless in that Act it is expressly stated that, subject to a referendum under section 4, it is to have effect without regard to the United Kingdom Parliamentary Sovereignty Act 2010.

The EC Act 1972 expressly states that all future EU law is to be treated as UK law with the force of parliament and implicitly affirms parliamentary sovereignty. In cases where Parliament has contradicted itself, as in Thoburn ('The Metric Martyrs'), the courts have followed the EC Act 1972 and EU law. If the Sovereignty Bill became an Act, I find it hard to see how the situation would change for the better. Parliament in 1972 (and therefore now, since legal time does not exist) would say 'follow the Europeans in what we have agreed to, which is almost everything' and Parliament in 2011 would say ' don't follow the Europeans in what we have not agreed to anyway but try and work out which existing process is something that we must have forgotten to disagree with'. It'll be like ordering lunch, then dessert, then saying that you won't pay for the peas which you did not have as an appetizer.

It is not clear from the Bill, as far as I can see, that there is any one authority which could decide if sovereignty was threatened, and I wonder about the mechanism by which a government which refused to pass a referendum could be brought to account. For instance, let's say a minister signs a treaty, which is then subject to a vote in the 'sovereign parliament' and passes, and which extends an EC power in language which does not suggest that anything new is happening-- a 'consolidating treaty', for instance. Who decides that sovereignty is compromised? Parliament itself will have already spoken. Whom does one name in the judicial review? Who are the authorities one can quote from?

You don't think that lawyers will waste time with this? I have one word for you. Pringles.

Silly, silly, silly. This bill--which will force parliament into the limitation of itself by a written constitution if anyone takes it seriously--and climate change, and cuts built into an expanding budget which prints money and shovels it at Banksters, is what UK Government is all about in 2011.

I hope AV Dicey is rolling in his grave.