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!