Two single thoughts on sovereignty

In a recent blog, generated by the EU referendum, allied to the Conservative plans to enshrine sovereignty in statute, Mark Elliott, Professor of Public Law at Cambridge, discussed the (by now) well known views of Lord Bridge in Factortame: that whatever limitations were imposed by EU Law, they were accepted voluntarily by Parliament in 1972 when it passed the European Communities Act.

This assertion relies on the fact that it had been in 1972 a (reasonably) long established principle of EU Law – dating to Costa in 1964 – that EU Law must be given primacy over conflicting national laws. That must be blindingly obvious: for a “common market” to work, there must be some common law. Unless and until all laws were common, that inevitably meant supranational supremacy. Lord Bridge was not dealing with that as a normative proposition but simply asserting first that doctrinally speaking, the point had been settled and secondly, that it could reasonably have been expected for MPs to have been aware of that. Hence, his voluntary acceptance assertion. Professor Danny Nicol puts the contrary view very well in his 2001 book EC Membership and the Judicialization of British Politics where, having researched the debates and the papers, he comes to the conclusion that Parliament was not fully informed by the Government – ministers, law officers and civil servants – on the legal consequences of joining the Community, as it then was.

That is not the point of this short blog. My concern is what Professor Elliott then goes on to suggest:

[Lord Bridge] argued that any limitations upon its sovereignty implied by EU membership had been accepted ‘voluntarily’ by Parliament when it enacted the 1972. The implication was that Parliament is at liberty to permit EU law to prevail over its own enactments. The flip side of that coin must be that if Parliament chooses not to permit EU law to have that effect—either by repealing the 1972 Act or asserting the priority of only certain pieces of domestic legislation over conflicting EU law—then it is free to do so.

I have never really understood what the voluntary nature of the argument adds other than to illustrate its consensual nature. I’m certainly not at all sure the flip side follows. If I voluntarily give my best friend my car, I cannot by the same exercise of choice, seek to make her give it back to me – it’s gone, surely? Some exercises of choice are a one-way street – the subject matter of the choice having disappeared, as a result of the choice being exercised (if I choose to eat a mars bar now, I cannot later choose to give it to my son) or become a differently constituted entity.

The difference here is greater – and is the point made by Lord Wade, (discussed a few paragraphs earlier in the blog) in his commentary on the Factortame case. If sovereign power X, in full awareness of consequences freely chooses to confer sovereignty on Y, then X is no longer sovereign – Y is. No unilateral act by X can ever restore X’s sovereignty as it is no longer sovereign. It simply cannot expect whatever reclamation order it makes under its purported sovereignty to have any legal effect. While it undoubtedly has the power – i.e. there is no restriction on it seeking to reclaim – it cannot legitimately expect to become the sovereign once again.

While, to be fair to Professor Elliott, the argument that his blog makes does not rest on the validity of those two seeming opposites both being true – but on the difference between UK domestic law and EU law on the international plane, that I am fully in agreement with, I thought it sensible to point out what I see is a flaw in logic.

This necessarily involves me disputing another “truth” about sovereignty – which Professor Elliott also makes, or repeats. It is this: sovereignty contains one built-in limitation. No sovereign can ever divest themselves of their sovereign power. I have never really grasped this. In lay terms, it confounds reason

“You’re the sovereign now”

“What does that mean?”

“You have absolute power.”

“Oh, does that mean I can abolish myself or give it all away to my mate?”

“Oh, no, that’s the one thing you can’t do.”

“But you said I had absolute power?”

“Ah, yes in all but that one area”

“Oh, so I don’t have absolute power?”

A body that has limitations imposed upon it is not sovereign but subordinate, surely… if for no other reason than that some other entity has prescribed what its powers are?

It seems too to fly in the face of historical precedent. Is it really being asserted that countless divine monarchs who, over the years, have ceded powers (and whether willingly or by force does not seem to matter here for this argument) to elected legislatures either

(a) were never sovereign since if they were able to cede power, they were never really sovereign? or

(b) such ceding could not only be unilaterally revoked by the monarch (perhaps by now a long extinguished line) but the law and political framework would respond to that unilateral revocation with welcoming arms?

That latter seems as far fetched as a re-united Conservative Government on 24 June!



Filed under Public Law

6 responses to “Two single thoughts on sovereignty

  1. Thanks, David, for this thought-provoking response to my post on sovereignty and EU law. Your response prompts the following thoughts.

    To me, the ‘voluntary acceptance’ point has always seemed important because it appears to challenge one of the fundamental premises that underpins Wade’s conception of sovereignty. As I understand Wade’s analysis, the notion of Parliament doing anything whatever in respect of the principle of legislative supremacy must be impossible, because, he argued, sovereignty lies not in Parliament’s hands but ‘in the keeping of the courts’. For that reason, I’ve always taken Lord Bridge’s willingness to acknowledge that Parliament can ‘accept’ a limitation on its sovereignty to sit uncomfortably with Wade’s approach to all of this. (In similar vein, the Jackson case sits equally uncomfortably with Wade: for him, the ‘rule of recognition’ is pre- or extra-legal, and beyond legislative manipulation by Parliament, whereas Jackson, at least on one reading, suggests that the rule of recognition can be and has been so manipulated.) The point I try to make in the post about Factortame, therefore, is really just that it seems to cast some doubt on — or at least be in tension with — the analysis that Wade advanced in his 1955 article in the Cambridge Law Journal.

    Something that I didn’t have the space to deal explicitly with in my post, however, is the relationship between Factortame and Jackson — which appear to characterise the sovereignty of Parliament as a legal phenomenon that Parliament itself can manipulate — and Thoburn and HS2, which characterise sovereignty in rather different terms. In particular, in Thoburn, Laws LJ — whose analysis is referred to, if not wholly endorsed, in HS2 — argues that sovereignty cannot be given away by Parliament, but is subject to principles of common law constitutionalism, including the principle that constitutional statutes cannot be impliedly repealed. This presents a somewhat different view of things, in that it takes the emphasis off Parliament’s voluntary acceptance of limits on its sovereignty, and places greater emphasis upon the capacity of the common law constitution to mediate the terms upon which Parliament’s legislative authority is exercised. However, what is interesting, I think, about the EU context is that it brings these two things — Parliament’s role and the common law’s role — into relationship with one another. Laws LJ is careful in Thoburn to say that categorising a statute as ‘constitutional’ flows from considerations other than the intention of Parliament. But, of course, if Parliament had not conferred a form of priority upon EU law by means of the ECA 1972, there could be no question of EU law having any form of priority. At the same time, however, that priority — according to Thoburn and HS2 — flows not straightforwardly from Parliament’s intention, but from the common law’s characterisation of the Act in which that intention was manifested as a constitutional statute.

    I think, then, that the best reading of the case law is that EU law enjoys priority because the common law constitution affords Parliament the capacity to enact legislation that is ‘constitutional’ in nature and which therefore takes priority over legislation that is not explicitly incompatible with it. This seems to me to amount to an explanation of EU law’s priority that is a curious amalgam of Parliament’s intention to accept the priority of EU law, and common law constitutionalism that permits EU law to have such an effect by treating the European Communities Act as a constitutional statute that prevails over ordinary legislation in the absence of explicit incompatibility.

    • John Hodgson

      One, in my respectful opinion, error in Prof Mead’s analysis is that the car, to use his example, has not been given away, but lent. I have been teaching both English Public Law and EU law for nearly 30 years and I have always adopted a position close to that of Prof Elliott. It also seems to be similar to the position of the German Bundesverfassungsgericht, albeit in the context of a state where the constitution is supreme. It is really an exercise in the higher idiocy that we should, in 2016, have no firmer basis for understanding the ultimate basis of constitutional authority in the UK in relation to membership of the EU than the dicta in Factortame, Thoburn and HS2.

      • John,
        But is it a loan/lend? surely a lender can impose conditions on the loanee or the loanee is forbidden from doing anything contrary to the lender’s higher title? If so, not sure either applies in UK relationship with EU.

        Do agree generally that it is a strange state of affairs where the scope/extent and even meaning of a state’s constitution is begin thrashed out on blogs and in dicta in judgments

  2. Pingback: Parliamentary sovereignty and EU Law: A response to Professor David Mead – Public Law for Everyone

  3. This is a very useful exchange, on an important topic. The terms of the debate, however, do bring to mind Bagehot’s observations about the often stark contrast between the formal understanding(s) of the constitution and the reality of how it operates in ‘rough practice’. I find the idea of a sovereign having the capacity to alienate its sovereignty not all that perplexing as, at one remove, it is the very foundation of the idea of representative democracy (the “people” are sovereign, but delegate (surrender) that sovereignty to elected representatives who then exercise sovereign power while the people, in principle, retain the right to assert their continued sovereignty at any time). So I am not convinced by the Mars bar understanding of sovereignty, which appears to rest on a narrow, Aristotelian logic, rather then recognising the complex and changing nature of social phenomena.

    What is absent in some of the observations is the important distinction between the de jure and de facto situations. Yes, as a matter of UK Public Law Parliament remains at all times sovereign, and, at the same time, EU Law takes precedence over Acts of Parliament, because of an Act of Parliament (the ECA 1972). While, in one sense, Parliament remains sovereign and can legislate contrary to EU Law if it chooses to do so, the realities of membership of a powerful regional structure mean, in practice, that Parliament cannot act however it wills. Such constraints are imposed not only by membership of the EU, but also as a consequence of various other international commitments (WTO etc.). So at one and the same time Parliament remains, as a matter of UK Public Law, sovereign, while in substance its sovereignty is curtailed and undermined in myriad ways.

    It’s also interesting to read Mark’s extension of his argument to incorporate post-Jackson understandings of parliamentary sovereignty as being, essentially, a creature of the common law. As intimated in both Jackson and AXA, this understanding means that the courts could, in principle, override an Act of Parliament, this, for many schooled in the traditional Diceyan notion of sovereignty, is as big a threat to the sovereignty of Parliament as membership of the EU, so it’s intriguing to see it invoked as a partially defence of the continued sovereignty of Parliament. I think this line of argument quite problematic.

  4. Sovereignty is not inalienable. It can be passed to a successor in title (as many colonies were); it can be transferred to another existing sovereign authority (Lousiana); it can be given up (Newfoundland, which did it to resolve its bankruptcy). When a soverign authority cedes sovereignty and then tries to take it away again (for example, in the Crimea) we tend to take it in bad part.

    If we take sovereignty to indicate legal authority and autonomy, there are some obvious tests as to whether sovereignty has been transferred. The first question is this: has the authority passed to a different system of law? If a system of law consists of distinct rules of recognition, change and adjudication, the answer is clearly ‘yes’ – and the EU has all those. The second question is: has the authority passed to a different system of government? If government consists of legislative, executive and judicial arms, the EU has all three. Third: has there been a legitimate process of accession? This is the most heavily disputed aspect historically, but none of the reservations applies in the case of the EU.

    The main reservation that one might make about the transfer of sovereignty in the EU is that authority is shared – there are areas of exclusive competence held by the EU, areas of exclusive competence held by the member states, and areas of shared competence. The classic definition of a federation, proposed by Wheare, is “an association of states so organised that powers are divided between a general government which in certain matters … is independent of the governments of the associated states, and on the other hand, state governments which in certain matters are, in their turn, independent of the general government. This involves, as a necessary consequence, that general and regional governments both operate directly upon the people; each citizen is subject to two governments.” When Britain ceased to be a unitary state, it became part of a federal system within that definition (and, for what it’s worth, within every other alternative definition reviewed by Wheare). Secession from that federation is provided for in the Treaty of Lisbon, and that, rather than the decision of Parliament alone, will determine the process to be undertaken if Britain leaves.

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