Not waving, but drowning ? : European law in the UK courts

Aidan O’Neill QC

The relationship between EU law and the municipal law of the United Kingdom seems to lend itself to allusions to water.   In Bulmer v. Bollinger [1974] Ch. 401 Lord Denning famously referred (at 418F) to the incoming tide of EU law, observing that “it flows into the estuaries and up the rivers. It cannot be held back, Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.”   And the Factortame litigation, too, was all about water, and the right to fish in it – specifically the Treaty based rights of Spanish fishermen not to be subject to discrimination on grounds of nationality when seeking to exercise their free movement rights to trawl for fish in UK waters.

The long decade of Factortame litigation – which unequivocally established that national courts in the UK should treat EU law based rights as being of a higher normative level than Acts of Parliament and that the UK could be found liable by UK courts to pay damages to those who suffered loss from Parliament’s enactment of an EU law incompatible statute – might now be seen to represent the high-water mark of the influence of EU law on domestic law.   For tides ebb, as well as flow.   The complaints of those of a Eurosceptic ilk of the Member States being “swamped” by a tsunami of EU regulation, of business drowning in EU rules have been increasingly dominant in our political discourse.   Eurocracy is associated with ever growing popular distrust.   The binding of Europe into monetary union is now seen as an act of hubris (the Greeks always have a word for it).     Even among the Europhiles, ideals and ideas seem to have drained from their grand post-War European project.   Scripture says: “without vision the people perish; but he that keepeth the law, happy is he”.   Yet what law is to kept, as the happy certainties of post-sovereign supra-nationalism embodied in une certaine idée de l’Europe no longer command common assent and have become unhappy uncertainties ?

Our courts are, of course, not insensible to this shift, this seeming turning of the political tide.   Recent judgments of the UK Supreme Court, in particular, have marked an increasing turn inward, as the continental is abandoned for the insular and the primacy of national constitutional fundamentals are re-emphasised over the provisions of international Treaties. But what “constitutional fundamentals”, you might well ask ? Classically, the only constitutional fundamental which existed in the UK under the Diceyan analysis of the constitution was the sovereignty of Parliament – and that has been considered and dealt with in Factortame.   What, then, is left within the UK constitution after Factortame ?  The judicial and extra-judicial writings of Sir John Laws seem to provide the beginnings of an answer. In R v Lord Chancellor Ex p Witham [1998] QB 575 he noted (at 581) that “in the unwritten legal order of the British state” it is “the common law [which] continues to accord a legislative supremacy to Parliament”. He also observed that the courts should recognise certain fundamental rights at common law whose “existence would not be the consequence of the democratic political process but would be logically prior to it”. In Thoburn v. Sunderland Council [2003] QB 151 he noted (at 185) that “the traditional doctrine [of Parliamentary sovereignty] has in my judgment been modified. It has been done by the common law, wholly consistently with constitutional principle” by the recognition of certain statutes as “constitutional” in the sense that, while not being entrenched, their provisions were not subject to implied repeal by later “ordinary” Acts of Parliament.   Parliament could modify their terms, but only expressly.   In Jackson v. Attorney General [2006] 1 AC 262Lord Steyn went further, suggesting (at § 102), that there might be some constitutional fundamentals “which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish”.   Despite some initial scepticism about the need or utility for reliance upon notions of common law constitutionalism in a post HRA/post EU Charter era (see for example Watkins v. Home Office[2006] UKHL 17 [2006] 2 AC 395 per Lord Bingham at § 29 and per Lord Rodger at §§ 59, 61) the ideas of Sir John Laws appear now to have triumphed into the new constitutional orthodoxy.     They were certainly central to the finding of the UKSC in Axa General Insurance Company Ltd v Lord Advocate [2011] UKSC 46 [2012] AC 868 that statutes of the devolved legislatures were subject to a form of common law review (for breach of the rule of law and/or fundamental common law rights).   In Kennedy v Charity Commission [2014] UKSC 20 [2014] 2 WLR 808 Lord Toulson at § 133 regretted what he saw as “a baleful and unnecessary tendency to overlook the common law. It needs to be emphasised that it was not the purpose of the Human Rights Act that the common law should become an ossuary.”   In R (Buckinghamshire County Council) v Transport Secretary [2014] UKSC 3 [2014] 1 WLR 342 Lord Neuberger and Lord Mance – in rejecting what looked like a fairly clear line of CJEU case law on the issue of what might properly be expected in and of a Strategic Environmental Assessment for large infrastructure projects (such as HS2) – suggested that there may be constitutional fundamentals which even EU law could not overcome.   As they noted (at § 207) that

“the United Kingdom has no written constitution, but we have a number of constitutional instruments. They include Magna Carta, the Petition of Right 1628, the Bill of Rights and (in Scotland) the Claim of Right Act 1689, the Act of Settlement 1701 and the Act of Union 1707. The European Communities Act 1972, the Human Rights Act 1998 and the Constitutional Reform Act 2005 may now be added to this list. The common law itself also recognises certain principles as fundamental to the rule of law.”

And in R (Osborn) v Parole Board [2013] UKSC 61 [2013] 3 WLR 1020 the UKSC emphasised (in Lord Reed’s judgment at § 62) that the starting point in fundamental rights cases should be “our own legal principles rather than the judgments of the international court”. Thus is the common law is resurrected, statutes and ancient charters deemed “constitutional”, old legal rules become fundamental principles, and rights discourse is de-Europeanised, re-patriated and re-branded as embodying the une certaine idée de l’Angleterre (or sometimes, even, de l’Ecosse). Continue reading

Sovereignty: a concept creating confusion

Sir Konrad Schiemann

[The text below formed the basis of a talk given by Sir Konrad, judge at the Court of Justice of the European Union until 2012, at the Matrix/UKAEL seminar "40 Years On - The Sovereignty Debate" on 7 March 2013.]

Throughout Europe and indeed the world there are frequent references in political discussion in the media and elsewhere to some outside body or state interfering with national sovereignty. The writer or speaker often takes it as self evident that the concept of sovereignty is clear and that any interference with his nation’s sovereignty is a bad thing. In the next few minutes I shall suggest that the concept of sovereignty is too vague and general to be a helpful decision making tool when deciding as a nation on how we should deal with any particular problems which confront us.

People like to make decisions for themselves and the concept of sovereignty expresses this desire. It is used in several contexts but I shall concentrate on national sovereignty – the alleged international independence of a state combined with the right and power to regulate its internal affairs without interference by any other state. Underlying the concept of national sovereignty which appears in political discourse in every nation is the notion that the possessor of sovereignty has or should have absolute power to prevent others from interfering with his exercise of his sovereignty.

We should be clear that sovereignty is a man made concept designed to prevent or limit the horrors of war. In the 16th century it expressed an idea that the sovereign could do what he liked in his territory but in return must let other sovereigns do what they liked in their territories. This was useful during the wars of religion but many have been horrified by the mass slaughters carried out within theirborders by certain states in the exercise of their sovereignty. So nowadays it is widely accepted that some interference by outsiders in the internal affairs of sovereign states is at times desirable as a matter of humanity even in the teeth of opposition by the state concerned. But in the context of Europe that is not the current problem and I leave it aside.

In the European context the problems arise because the Member States of the Union signed Treaties and set up institutions to make laws and agreed to abide by the laws as made by those bodies. One can have a fruitless debate as to whether in so doing member states were exercising their individual sovereignty or limiting their sovereignty. The act is that the treaties were the result of decisions to cooperate, to achieve aims jointly which no state was in a position to achieve on its own. But one must recognise that since Member States created law making institutions and gave those institutions powers to make laws the contents of which were not known to the member States at the time, Member States lost what power they had in those fields to act on their own.

One facet of this situation is the temporal one. Previous governments entered into these agreements. Are present governments to be bound by them? It is at this point that appeals are made to doctrines of sovereignty which, it is said, can not be given away by one generation at the expense of the next. But it is obvious that agreements from which anyone can escape at any time are pretty well useless. If you wish to obtain the certainty that your partner will be bound by the agreement even when he finds it inconvenient than you have to live with the fact that you must agree to be bound even when you find it inconvenient.

Statements at a high level of abstraction – all men are equal, all nations are equally sovereign – have a superficial attraction. However, when people start talking about sovereignty we should be on our intellectual guard. Sometimes one has the impression that they have not considered the matter in depth. One suspects that at other times they may be consciously pulling the wool over our eyes.

In any event all useful discussion in this field must start with reality. It is clear that some countries are more powerful than others. But it is equally clear that even the most powerful can not achieve all that it wishes to achieve without the cooperation of others. A state’s domestic law may permit it to export nuclear goods or sausages with a large bread content or beer with a small hop content but this is not of practical value unless other states permit the import of those goods. So agreement has to be reached. A state may design its own road signs but this is of little practical value unless drivers from other states easily recognise the meaning of those road signs. So uniform practice is desirable. A state’s domestic laws may prescribe air quality of a particular purity but this is of limited practical value if air of inferior quality comes in from the state next door. So you must try and persuade the state next door to raise its standards. A state may wish to encourage its companies to establish subsidiaries in other states but this is of little practical value unless the other states in question allow the establishment of such subsidiaries. So you must try and persuade it to do so.

Now in order to reach agreement one can either act in a series of bilateral negotiations or have multilateral negotiations. In either case the process is a voluntary one on all sides. Any state can in the last analysis block any other state’s desires. Each state can impose different conditions and so it becomes a bureaucratic nightmare if, when you are exporting goods through several countries, you need to comply with them all – particularly if the different countries impose mutually incompatible requirements. If by contrast one has such a system as the European Union with its own law making powers governing the whole area of the Union then you may be in a position to achieve your goals and simplicity by legislating with the appropriate majority. That is delightful if it enables you to get your way in the face of opposition. The downside is that the same technique can enable another state to get its way in the face of your opposition.

Different problems require different solutions and therefore it is unhelpful to treat a doctrine of sovereignty as imposing a solution independent of our volition and as allocating all power to one source. The truth of the matter is that decisions have to be made in all sorts of different fields as to what institutions should regulate what problems. In each of those fields different procedural requirements can be prescribed.

The sovereignty debate tends to obscure the underlying issues in any particular case. What lawyers are, or should be good at, is separating problems out (analysing them) thus helping in the choice of decisions.

The lawyer must also recognise the problem facing the politician. A politician seeking election must believe, or at the least, give the impression that he believes, that he will and should have power to do good if he is elected. Otherwise why should anyone elect him? The more power he can plausibly lay claim to the more will voters flock to his banner. In consequence politicians tend to oppose those who assert that politicians have less power than they claim or who seek to remove from the politicians some of the power he in truth has. This is understandable In truth, we all like to think that we have some influence on matters.

If, like me, one is not seeking election it is easier to talk frankly about things as they are. And the truth of the matter is that politicians have far less power to do good than they claim. Political memoirs written in old age repeatedly recount how the author found himself out of reach of levers which he wished to pull and powerlessly pulling those levers which were within his reach. Experience tends to show that cooperation – a bit of give and take – is often the best way of achieving some desired goal and that the occasional shortfall in one’s desires is compensated by some gain in another field.

In my judgment it is not wise to put this at risk because of an inflexible application of doctrines of national sovereignty to all issues. We should look at each problem separately, identify what we are trying to achieve and what is the best way of achieving it. This will seldom turn out to be an appeal to national sovereignty which by its very nature is likely to antagonise and give rise to equal and opposite appeals.

Sovereignty – The historical perspective; or ‘les absents ont toujours tort’

Jessica Simor (Matrix)

[The following is the text of a speech given by Jessica Simor at the Matrix/UKAEL seminar "40 Years On - The Sovereignty Debate", held today, 7 March 2013.]

Sometimes it feels not that progress is slow but rather, that nothing changes…and nowhere more so than in the context of the debate over sovereignty. The regressive nature of that debate seems to have got worse in the past few years, encompassing a general animus to anything vaguely ‘European’ – it is as if the ‘nationalism’ debate is no longer played out by reference to ‘foreigners’ in general but rather by reference specifically to “the Europeans” and anything vaguely “European”. 

It is difficult to get to the bottom of all this.  On one occasion, faced with a conservative MP who loathes the Human Rights Act with a passion, I asked him to explain exactly there was not to like about the rights articulated in the Convention.  His response was that he didn’t like where they came from; they were not ‘British’.  My pointing out that he seemed to be enjoying his French wine did not persuade him.   On another occasion, when faced with an individual expressing astonishing venom about ‘laws from Brussels’, I asked what could possibly have caused him to feel such ‘hatred’ and what laws specifically he was talking about. The eventual answer I got to that was: “they are all socialists over there.”  Such ignorance is perhaps at the route of it all.  This is of course encouraged by politicians who use ‘Europe’ as their proxy for ‘nationalist rhetoric’; hyperbole and outrage fostering a classic ‘them and us’ vote raiser.  Only a couple of days ago, Boris Johnson said to the FT:

“Chronically and historically, of course, our friends ... have long looked at London with feelings of envy and a certain desire to take us down. They use the threat of EU directives to achieve that.”

But of course, we are part of ‘They’; we are Europeans; as much part of the machinery that makes policies and enacts laws in Brussels as any other state.  

The difference perhaps is what European Unity symbolises for Britain and in particular the political elite.  This is very different, certainly from Germany but also from traumatised Central and Eastern and indeed from France.  Hans Dietrich Genscher in a recent interview[1] describes how for Germany, sitting at the European table, meant “a return to the community of civilised nations”.  By contrast, for Britain, it meant “a farewell to Empire”.

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Matrix/UKAEL seminar: 40 Years On – The Sovereignty Debate

As many of our readers will be aware, 40 years have passed since the accession of the UK to the (then) European Economic Community.  To mark that milestone, Matrix has organised a series of seminars exploring the role of EU law in our domestic legal system.  The series starts tomorrow morning, Thursday 7 March, with a seminar, jointly organised with the UK Association of European Law, on sovereignty.  The line-up is a stellar one: it features Sir Francis Jacobs (formerly an Advocate General of the Court of Justice); Sir Konrad Schiemann, who until very recently was the UK judge at the Court; and no less than three eminent Matrix members, Rhodri Thompson QC, Prof Takis Tridimas and Jessica Simor (who, we are delighted to say, has just been appointed a QC herself).

Matrix will be live-tweeting the event (@matrixchambers; #40yearson) for those of you who are interested in following proceedings, and in due course we hope to post at least a summary of the contributions.

The European Union Act 2011: three key questions

By Mike Gordon, Lecturer in Law, Liverpool Law School, University of Liverpool

This post originally appeared on the UK Constitutional Law Group Blog and is re-posted here with thanks.

The European Union Act 2011 (EUA) is an unprecedented constitutional experiment.  This post will outline the two main innovations of the Act: (1) the section 18 ‘sovereignty’ clause; and (2) the scheme of ‘referendum locks’ introduced in sections 2, 3 and 6.  Three key questions raised by the EUA for UK constitutional lawyers will then be identified, and some tentative responses to these questions sketched.  The post draws on an article written in collaboration with my colleague Michael Dougan, which is to be published in the February 2012 edition of the European Law Review.

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