Sovereignty is a tricky word. The concept underlies most Euroscepticism, left and right – the simple idea that we should democratically decide our own laws. But Eurosceptics are unwise to try to deploy it when campaigning – I remember sitting in on one focus group which asked attendees to write down what the word sovereignty meant to them. Without fail, they all wrote something about the Royal family – a reminder that terms which might be commonplace in Westminster are in fact technical and obscure to the wider electorate.
If you want to make a technical term more obscure there is no better way to do so than get into a battle over the legal mechanisms which underpin it. This is what has happened around the publication of Tusk’s proposed response to the Government’s EU renegotiation this week.
First are the legalities of the deal itself. At the moment, it’s just a draft – over the next ten days or so each Member State will decide whether it supports it or not, and all of them must approve it for it to survive. They could nod it through, propose amendments (either to Cameron’s satisfaction or to his dismay, depending) or they could veto it. Even if it secures unanimous approval in its current form, the process doesn’t end there – as Guy Verhofstadt said today, then the European Parliament would get to “accept it, to change it, to modify it”. Troublingly, those changes – and the subsequent thrashing out of the precise details of how things like restricting welfare for migrants will probably not be concluded until after a June referendum has taken place.
This is what Martin Schulz, the President of the European Parliament, means when he says of the Prime Minister’s promise of a legally irreversible agreement that “nothing is irreversible”. As I noted earlier in the week, the EU has form for tearing up deals that were previously meant to be set in stone – so the electorate will be asked in the referendum to vote on a deal whose details are uncertain and which might later be revoked anyway.
The second aspect of this legal battle is the Prime Minister’s pledge to assert the sovereignty of Parliament. Early this week, in response to a question from Boris Johnson, he said “I am keen to do even more to put it beyond doubt that this House of Commons is sovereign.” The Government won’t be drawn on precisely what that means, but the general speculation is it means a law of some sort being passed declaring the fact – essentially another instance of issuing a press release by means of legislation. Doing so would be fundamentally pointless – of course Parliament is sovereign, it (regrettably) voted for us to join the EU and it retains the power to vote for us to leave it. Legislating to say so wouldn’t change a thing, even if it might give some MPs a sufficiently warm feeling to back the Remain campaign.
Both Paul Goodman and Dan Hannan have written on this site about a legal change which could materially change the sovereign standing of Parliament – scrapping Articles Two and Three of the 1972 European Communities Act would go beyond simply asserting that Parliament retains the right to be sovereign should it one day want to be, and would instead reclaim the supremacy of Westminster law over EU law.
However, there is no sign of Cameron fancying such a change. Rather, in the questions following his statement on the renegotiation, Dominic Grieve popped up to suggest that the Tusk document itself could function to bind the European Court of Justice from forcing further integration on Britain. Damian Green also made a very similar same point, suggesting a degree of discussion beforehand between the two close allies. The Prime Minister agreed with both of them that the proposals themselves were a tool to restrict the EU’s power over Britain, further strengthening the suspicion that this is an argument the Government intends to deploy at length.
The problem is that the EU treaties still say what the EU treaties still say – that ever closer union is a core rule, that the EU wields large amounts of power over wide areas of law and public policy, and that Britain is a signatory (albeit one with some opt-outs and vetoes). As Sir Francis Jacobs, a former advocate general of the European Court of Justice, told the BBC this morning, “there is certainly no alternative to the view that European Union law must prevail over national law.” Letters from Donald Tusk don’t change that. Only treaty change can do so, and while the Prime Minister argues that the Tusk package looks ahead to potential treaty changes, it cannot have the power to guarantee any such change. And why should it, given that the Government didn’t ask for treaty change to underpin the renegotiation?
Finally, there’s the idea in the air of establishing a Constitutional Court, akin to that of Germany, which would have the power to review EU laws to ensure they are not infringements of sovereignty or undue extensions of the EU’s power. Michael Gove has floated the concept, and Boris Johnson is reportedly a fan, though the Prime Minister is yet to return to the topic publicly. However, this too has a number of weaknesses. First, as Professor Mark Elliott of Cambridge University pointed out to The Times, the fact would remain that Britain is party to the EU treaties – a Constitutional Court could at most confirm them, not reclaim any powers from Brussels. Second, Parliament itself is meant already to be the court which scrutinises such EU legislation – if it is failing to do so, the addition of some judges to proceedings would do little more than improve the legal process to the level at which it already ought to operate. Third, the limited potential of a German-style court can be seen in the record of the original institution in Germany: It has the power to strike down EU laws, but it has never, ever done so. The prospect of replicating that in Britain won’t reassure anyone.