“It has to my mind convincingly been shown that the principle of parliamentary sovereignty has been recognised as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot, by themselves, change it.”
So wrote the late Lord Bingham in his magisterial The Rule of Law. He was defending parliamentary sovereignty against the view that it is a construct of common law and can thus ultimately be trumped by the courts.
If you hold this view, the primacy of EU law over UK law is, as it were, one which is leant rather than given. What Parliament lends, Parliament could take back. As Daniel Hannan points out today on this site, it could do by scrapping Articles Two and Three of the 1972 European Communities Act, under which those powers were leant.
But whether it does so or not, there is no need to put the principle of parliamentary sovereignty “beyond doubt” by passing a declaratory act, as David Cameron hinted to Boris Johnson in the Commons yesterday, and as a Guardian report suggests this morning.
This is because such an act would make no difference to the continuing debate in which Bingham was engaged. Either Parliament is sovereign, in which case such an act would be useless, or it isn’t and the courts are, in which case such an act would also be useless.
The Prime Minister is also considering vesting “the UK supreme court or another official body…with powers akin to those of the German constitutional court, which has the right to assess whether legal acts by the EU’s institutions remain within the scope of the powers of the EU”, according to the paper.
But if EU law retains its present primary then any declaration by such a court would have no authority. Even if one disagrees with this view, it would surely be contradictory for the Prime Minister to seek simultaenously both to uphold parliamentary sovereignty while also giving a court the power to determine when it applies.
The long and short of it is that if Cameron wants to end the primacy of EU law he should champion scrapping Articles Two and Three – or else, of course, leaving the EU altogether. I am sure that Boris grasps the point.
I wrote on Sunday that the Prime Minister would produce a constitutional rabbit from a hat, and he is duly displaying its twitching ears – with the rest, presumably, to follow later. Perhaps Oliver Letwin or Michael Gove will be able to square the circle, but these ideas are not encouraging. (According to today’s Times (£), the latter believes that the constitutional court scheme is unworkable.) Dan, improving on my Watership Down analogy, asked whether the creature would be “a fierce General Woundwort rather than a deceptive Cowslip”. Perhaps we would have done better to suggest Roger Rabbit.