The EU's judicial land grab

A reader takes us to task for focusing too much Margot Wallström, commissioner for truth and reconciliation, instead of such things as Sunday's leader in The Business, which comments on the EU constitution and the primacy of EU law.

My colleague deals with the Wallström issue, pointing out that her Blog is part of the charm offensive that the EU is conducting to get us all to sign up to the constitution. The naïvity of some of those who comment on her Blog – commending her for being "brave", etc., etc., demonstrates quite how effective this ploy could be – putting a "human" face on an otherwise impersonal commission.

The Walström Blog is a cold, calculated and possibly quite cynical PR exercise, carefully devised to give just the right mix of personal detail and EU propaganda to make it palatable to the more gullible of our brethren. Anyone who thinks that an experienced commissioner – who just happens to be in charge of EU communications – just happened to dream up the idea of doing a Blog, all on her very own, clearly needs to get out more.

Anyhow, as to The Business leader, this was headed: "The EU's judicial land grab" and it does deal with important matters, arguing that the provision in the treaty which afford supremacy to EU law is more than merely a re-statement of existing ECJ case law and goes right to the heart of who will possesses legal supremacy in the United Kingdom - and hence where sovereignty will lie.

The case is advanced that the judgement of Lord Justice Laws in the famous "Metric Martyrs" case of 2002 is highly significant in that it made a crucial distinction between substantive law - day-to-day laws and regulations such as those limiting the working week or harmonising goods or services - and constitutional law.

His judgement reflected on the crucial fact that the European Court of Justice (ECJ) has stated since the 1960s that EU law is superior to all national law including national constitutional law - itself a quasi-coup by the Luxembourg judges and one of the most blatant judicial land grabs in history, given that such powers were never mentioned anywhere in the Treaty of Rome.

But, says the Leader, Laws dismissed the ECJ's view and restated instead that the British Parliament is "sovereign" in the sense that it has ultimate authority to pass whatever statutes it likes; and that this sovereignty is protected by English common law. To the extent that this power may be curtailed, he ruled, this can only be done by domestic courts and the common law - not by the EU.

Laws said that Parliament could not give away this ultimate authority to any foreign jurisdiction even if it wished to and even if it passed an explicit act to such an effect; if it attempted to do that and hence to bind future Parliaments, the courts would reject it as anti-constitutional. Thus, EU law is not superior to national constitutional law; day-to-day EU law usually trumps domestic law - but only because Parliament allows it to do so.

However, the EU constitution (Article I-6) states that "the Constitution, and law adopted by the Union's Institutions in exercising competences conferred on it, shall have primacy over the law of the Member States", from which it is argued that EU law becomes supreme over national constitutional law, which would officially signify the end of member states as independent countries.

This is supposedly a deliberate renunciation of Lord Justice Laws' judgement – and could terminate the common law principle of parliamentary sovereignty - the foundation of the British constitution for centuries.

We get something similar in The Times today, by way of a letter from Bill Cash, who argues that the new primacy under the constitution (which revokes the existing treaties and laws) would override our laws and constitution, creating a new conferred competence.

Personally, I am not convinced. Although the new treaty establishes a "constitution for Europe", it is still a treaty. The singular issue here is that while governments negotiate and are bound by treaties, parliaments are not. They are not parties to treaties. The EU constitution, therefore, owes power in the UK to Parliament’s permission, and survives for only as long as Parliament permits it to do so.

This is precisely the point made by Lord Justice Laws and in the event that the EU constitution did take effect, Parliament could still decide at some time in the future to repeal all or part of the European Communities Act 1972 (as amended), in which case the constitution would cease to have effect and any EU law no specifically enacted by an Act of Parliament would fall.

That, in any event, is my view, but I am open to persuasion that I might be wrong. But there is another factor. The treaty and all that stems from it is a political act, albeit dressed up in legal language. Annulling the ECA would also be a political act and, short of the rest of the EU using the Single European Tank to invade us, there would be nothing much that anyone could do if Parliament did do it duty and get us out.

But then, I could be wrong.