No better way to return to blogging than to turn around, face your party and tell them they’re wrong!
As I am currently en route to a constitutional law tutorial, it only seems appropriate to talk about the constitutional issue running through the blogosphere this week: Cameron and Hague’s proposed Sovereignty Act. This act, we are told, will assert UK supremacy in the area of EC law.
The problem with this legislation is that it is a pile of logically absurd and constitutionally dangerous nonsense.
First, look at the underlying logic of the act. The only time you need to pass an act declaring you are a sovereign body is when you are, in fact, not sovereign. Yet, if you are not sovereign, you do not have the authority to pass such an act. A sovereignty act is, perforce, ultra vires. The only time such measures do not self-contradict is when they are accompanied by revolutionary violence. Somehow, I don’t think this is what David Cameron is promising.
Fair enough l, you might say, but this is politics; academic legal and logical purism should be subordinated to the realities of power; the logical conundrum will have little practical relevance.
Except that it will.
The problem is that what the Sovereignty Bill proposes is already the legal status in the UK. Parliament is sovereign, and the EU’s authority in this country derives solely from an act of the same: the European Communities Act. The danger comes in that creating a redundant piece of legislation that states the bleedin’ obvious will impose on the courts a duty to interpret it as somehow altering the constitutional order. The courts cannot simply disregard the act on the grounds of it being a grandstanding gesture. This risks driving a steamroller through a delicate area of jurisprudence on the sovereignty of Parliament and its limits. Worse, a challenge to the Bill could even further muddy the waters even further, and this is all before interests in Parliament attempt to amend the Bill to the point that the whole constitution is destabilised.
Conservatives should not support such a potentially destabilising and pointless piece of legislation.
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Also, ever since the Factortame case the ECJ and UK courts have said that in areas of Community competence, UK courts can overrule Acts or reinterpret them in line with EC law. So there are basically two classes of Act, those that are constitutional and those which are not and which can be overruled or reinterpreted. Unless the Sovereignty Act explicitly states that it has supremacy over the 1974 Communities Act, it will just get reinterpreted along with everything else.
It’s bad enough the Government is tinkering with the Constitution – but now the Opposition?
Dominick Grieve knows better. Or at least he should.