Err, don’t think so Daniel

Daniel Hannan in a recent blogpost on the Telegraph writes:

“People often ask what kind of new deal with the EU would satisfy me. The short answer is, one which restores the supremacy of our law. In practical terms, this would mean an amendment to Sections 2 and 3 of the 1972 European Communities Act to provide that, from now on, EU Directives and Regulations should be treated as advisory pending a specific implementing decision by Parliament. It really is that simple.”

The European Commission, in a letter dated 10th November 2010 to Stefano Manservisi, Director General, DG Home, wrote:

“ must be recalled that Union Law prevails over national law, including national constitutional law.”

Not really that simple then, it would appear.


18 Responses

  1. Ian Hills says:

    Plus the Lisbon treaty prevents us from leaving, except on terms laid down by the EU.

    • Peter C says:

      Not actually so, Ian. The exit strategy is that the member nation gives notice that they intend to leave and it is then required that negotiation takes place for a maximum of 2 years in order to come to an agreement on just how the political and legal entanglement between that country and the EU is picked apart.

      This could be interpreted, as many do, that the departing country will have to go cap in hand begging the EU to be kind to them and permit them to leave. I would say that is not a reasoned argument, indeed it is a particularly jaundiced one.

      The most likely reality under the Treaty and the way any sensible person would surely view it is that once notice of leaving is given it is up to the leaving country to decide just how much EU entanglement they wish to continue and up to the EU to salvage as much of that entanglement as they might wish, in the case of the UK I suspect they would rather keep less than we might expect as we are probably the biggest barrier to the dream of a Federated States of Europe there is. On the other hand, we are very substantial contributors to EU finances, a contribution they would not like to lose. Indeed, it is suggested that the financial loss involved for the EU could in itself bring the whole thing down especially in the current circumstances.

      While I would personally vote to leave the EU the ramifications and consequences are truly unknown, just as much by lightweight twits as Hannan, our own government and the EU. Leaving would be a leap in the dark, both for us and for the EU, yet it is still one I would take.

      • david says:

        As ever Peter C, your comment is quite correct. If we elect to leave we would have to negotiate the terms how we continue trading with the EU, either as a member of EFTA or by bilateral agreements such as Switzerland has adopted.

        As you say Article 50 is misinterpreted as all the cards laying with the EU, but I too am of the opinion that this is not so for the reasons you give.

  2. graham wood says:

    “ must be recalled that Union Law prevails over national law, including national constitutional law.”

    That is an assertion with no foundation in fact. I don’t know of a single EU member state which would endorse that, or which, when push came to shove, would not treat it with contempt. The reasons are many.
    For a start there is no “binding” of a British Parliament by a supra national organisation like the EU. No British parliament can bind its successors, and if a (still sovereign) parliament repealed the ECA 1972 in “one afternoon” there is precisely nothing the EU or any other internationalist organisation could do about it, notwithstanding any “terms” laid down by Lisbon.
    Second, if Union law is perceived as prevailing over national law then why is the German Constitutional Court in Karlshrue meeting at all to decide on the constitutionality of greater fiscal union proposals?
    Again, there is no reason why a UK or any other EU member state wishing to leave the EU should not invoke the spirit and letter of the Vienna Convention on Treaties as being sufficient grounds for repudiating entirely the EU’s arrogant claim, for the EU itself has, and is, breaking its own “constitutional” framework of Maastricht every day through its bail-out policies of bankrupt member states.
    In the end the British people may simply say “No” to continued membership in a referendum, which seems increasingly likely, and that would be the end of it.
    So please, not more irrelevant nonsense about the bogus status of “EU law” from this clapped out, undemocratic, unaccountable organisation which presumes to a “higher” law than national parliaments.
    Actually, “law” in the end, is what the people deem it will be through national elections.
    A two fingered salute to the EU is all that is required should our political class ever wake up, and a withdrawal of our colossal memberhsip fee in short order.

    • Peter C says:

      Again I have to say, not actually so, Graham. I direct you to Section 17 of the Lisbon Treaty.

      17. Declaration concerning primacy

      The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.

      The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260):

      ‘Opinion of the Council Legal Service of 22 June 2007
      It results from the case-law of the Court of Justice that primacy of EU law is a cornerstone principle of Union law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL,15 July 1964, Case 6/641 (1) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.

      (1) “It follows (…) that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.”’

      You can’t really get more explicit than that.

      • david says:

        Once again, Peter C, you have stolen my thunder! I have this morning, on twitter, challenged Daniel Hannan on the point made in this post that it ain’t as simple as he writes – I am still waiting for a response!

        Unfortunately @graham wood is completely wrong when he states that once we say we’re out that that is the end of the story. The UK signed a perfectly legal treaty and is bound by the terms of said treaty – and in my admittedly untrained legal opinion citing the Vienna Convention on Treaties is but to introduce a red-herring into the argument.

        People may be the ultimate voice in deciding law but to change existing law dictated in a signed treaty, first extraction of that particular treaty affecting existing law has to be actioned.

        @gw should also realize that it is not just the Treaty of Lisbon that requires our withdrawal but also other international treaties we are party to; for example UN and WTO.

        • Peter C says:

          I do apologise, David, it is not my intention to usurp your blog, I just happened to be awake, both physically and mentally at the right time, a rare conjunction to be sure.


  3. graham wood says:

    Peter. Thanks for the comment, but what is exactly not so” in what I posted?

    As I said, there is absolutely nothing in our Constitutional law which binds the UK to the directives of any foreign organisation.
    The British Consititution knows nothing of “Desuetude” of a constitutional law, (i.e. a state of disuse) which is unknown in English law, and these cannot be impliedly repealed but only by express intention of a Parliamentary Bill.
    Our own Bill of Rights and EU law are mutually incompatible and the former remains unrepealed. Incidentally it was a Speaker of the H of C who declared that the B of R “will be fully respected by all those appearing before the courts”
    Treaties can be signed, and treaties ignored (as the EU itself continually moves the goalposts), or simply torn up.
    When Thomas Paine expressed the following he was articulating a principle which simply will not go away once a national electorate has decided it has had enough of a particular policy.

    “”There never did, there never will, and there never can, exist a Parliament, or any description of men, or any generation of men, in any country, possessed of the right or the power of binding and controlling posterity to the “end of time,” or of commanding for ever how the world shall be governed, or who shall govern it; and therefore all such clauses, acts or declarations by which the makers of them attempt to do what they have neither the right nor the power to do, nor the power to execute, are in themselves null and void. (Thomas Paine – ‘The Rights of Man’)

    IMO therefore a “declaration of primacy” by the EU concerning Lisbon is a mere assertion, and of necessity is democratically and constitutionally illegitimate.
    In the light of this therefore, how long would you think that this so called “law” could or would prevail? Who is to decide whether British Constitutional law is in the last resort authoritaive over that of all other? Answer: Obviously ‘the people’ and Parliament.

    I think you are implying by your comment that a British Parliament is somehow impotent in this curcial matter, and that the oft repeated principle no longer applies – i.e. what has been ceded to the EU by way of powers by a British Parliament can likewise be repatriated at any time, or in any way by an Act of that same Parliament.
    I agree the “terms” you quote could not be more explicit, but that begs the question about the ultimate sovereignty of a British Parliament in its Acts.

    There is no reason at all why the chains of EU hegemony may not be broken by repealing the ECA 1972, and then the much discussed “negotiations’ as to our future relationship with the EU can begin on our own terms. and that from a position of strength. (There is massive political and econonmic mileage in such a position)
    Whether or not there would be a politician or party with sufficient backbone to take the UK through that process is another question.

    • david says:

      Methinks, Graham, that you argue against yourself. If you accept that the terms quoted are explicit – as you do – then you accept that the British Parliament ceded its sovereignty to the EU – hence it no longer has sovereignty and therefore any ‘declaration’ it may make is worthless.

      • graham wood says:

        But that is not quite what I said David. For many years now British politicians have, and do, assert the point I have made, namely that power has only TEMPORARILY, been ceded by our Parliament to the EU.
        It can then likewise be repatriated by an Act of Parliament can it not? It is as if our Constitution is in suspension, but that is not to say it abolished!
        When you say “it(Parliament)no longer has sovereignty and therefore any ‘declaration’ it may make is worthless.”, that I think is tantamount to a council of despair. But it is more than that, and I wonder if you realise the implication of what you are claiming.
        You are saying in effect that the democratic process in the UK, or for that matter any EU member state is null and void, that a democratically elected Parliament’s will and decisions are “worthless”. By extension there is little point therefore in holding national elections if the electorate is istself disenfranchised to decide the country’s destiny.
        That is why I made the point about the German constitutional court now sitting on the question of the validity of the ESM is of such huge significance. It is exercsing its constitutional legitimacy on behalf of the German people!
        Your position is one which defies all logic and constitutional and political precedent. Can you be serious?
        If as seems almost inevitable the break up of the EZ takes place, and with it progressively the strucutural institutions of the EU then as acknolwedged by all political commentators the nature (existence? of the EU changes fundamentally and re-negotiation of existing treaties and commitments will take place anyway, and I suggest irrespective of terms laid down by Lisbon.
        To answer your point “GW should also realize that it is not just the Treaty of Lisbon that requires our withdrawal but also other international treaties we are party to; for example UN and WTO.”

        Of course I realise that the UK would have a difficult time in extricating ourselves from various international treaties involving the EU. I have not argued otherwise. I simply state that an initial first step is to repeal the 1972 Act, which would be a necessary pre-requisite for that process of negotiation to take place. Perhaps you can say why that parliamentary process is somehow invalid or irrelevant?
        I’m sorry, but the Lisbon Treaty is not sacrosanct, and it is definitely arguable that whilst the UK government may have “signed” up, the British people most certainly were not party to that or any other treaty.
        Say for the sake of argument UKIP, or a transformed agressively eurosceptic Conservative Party commanded a sufficient majority in the H of P, are you seriously suggesting that if given a mandate by the British people to demand re-negotiation on our terms, or simply repealing the Act would somehow be “illegal”.
        In the last resort however a British government can of course impose terms within the two year period laid down by Lisbon simply on the basis that we can threaten to withdraw our membership fee at any point.
        In economic terms we also have the whip hand in that we have a continuing and growing trade deficit with the EU – they buy far more from us than we do from them. We don’t need the EU – but they most certainly do need our net contributions of £10 Billion p.a. to them as Nigel Farage constantly points out!

        • Peter C says:

          Graham, I think we are arguing two different things here.

          You are correct that a future UK government could simply declare Lisbon and all that went before it null and void should it so choose. It wouldn’t make the separation any easier and it would do no good for our international reputation nor make it easier for us to enter other international agreements or treaties, but it could be done.

          On the other hand Gordon Brown, acting as the sovereign power in the UK, signed the Lisbon treaty which specifically stated our acceptance that EU law trumped national law, which is why our own judiciary routinely accepts that UK law is subservient to EU law, that in short, it is now our law that EU law has primacy, and why we pay up when the EU imposes a fine when we fail to convert directives into law correctly or in time. Be glad there is mechanism enshrined to exit.

          The German question at the moment is really a red herring. It has nothing to do with EU law, it is about the constitutionality of the German government entering into new agreements with the EU that break German Basic Law. Should Karlsruhe decide signing up to the ESM is unconstitutional the outcome will not be that the German government would be banned from doing so, it would be that German government would have to obtain permission either from a referendum or through a change in the constitution before it did so.

  4. graham wood says:

    Peter. We may indeed be arguing at cross purposes concerning the ability of Parliament to leave the EU, and perhaps there is no need to labour minor points.
    That there are complexities inherent in leaving is beyond question, but we are discussing the real possibility of doing so, according to Hannan, by amending or repealing the 1972 Act as a sovereign Act of Parliament which in effect would be to repatriate all powers ceded to the EU.
    The relationship between EU ‘law’ and national constitutions is also complex, and there is considerable discussion of some basic points on the internet by such people as J H Weiler, Roman Kwiecien, and Franz C Mayer.
    We need not enter into all their arguments here but I simply quote one of the relevant comments:

    “The process of European integration has come a long way, but it is an open process without a complete and defined structure. For this reason, the “constitutionalization” of European integration has to be based on the only real, existing constitutions – the national constitutions. For the foreseeable future, the main foundation of legitimacy for Community authority will remain the democratic will of the peoples of Europe – not, unfortunately, the `will of the European people’ which, at present, is largely inchoate. European law will continue to lean on the national constitutions for its validity.”

    That summary appears to be right IMO, and in principle incontestible. Interestingly, Lisbon itself in Article 50 (on leaving the Union) appears to acknowledge this principle for in the 1st Clause about deciding to withdraw on the part of a members state, it makes the important qualifying point – “Any member state may decide to withdraw…… IN ACCORDANCE WITH ITS OWN CONSTITUTIONAL REQUIREMENTS”.
    That too could not be more explicit and in my view concedes ultimately the supremacy (as opposed to primacy) of national law over that of Community law. According to Hannan and others this would simply mean an amendment, or outright repeal, of the ECA 1972 – initially requiring a relatively simple Bill in Parliament.
    That there are obviously many other complex negotiations following such a decision is not immediately to the point.
    What is at point is the ability to make that decision unilaterally and sovereignly by Parliament once a mandate (via a referendum or Commons majority) is obtained. That would be the beginning of a much longer process as we all agree.

    • david says:

      You originally said: “In the end the British people may simply say “No” to continued membership in a referendum, which seems increasingly likely, and that would be the end of it.” Not so, even if Parliament so voted.

      I repeat we have signed an international agreement, the articles to which we are bound. With your acceptance of the fact the EU law is supreme and therefore prevails over national law it matters not what Act/decision parliament makes, it can have no supremacy over EU law until we have left the EU – and the only way that can happen is by invoking Article 50 – regardless of what the likes of Denis Cooper may say regarding Article 48.

      You likewise claim that sovereignty has only been temporarily ceded, which it has until such time as the UK leaves – no argument with you there, but for reasons explained many times it means that although Parliament may decide to reclaim its sovereignty that reclamation means nowt to the EU until Article 50 is invoked and the withdrawal process completed – which in effect means the ceding is permanent, but hey lets not get into semantics……..:)

      You write about the first clause of Article 50: That is true as some countries require a referendum of the people under their constitution whereas we do not (parliament could decide). That paragraph is inserted purely to provide the EU with a ‘cover’ as a sop to democracy, IMO.

      FYI I am not the only one maintaining this position – go talk to RN if you wish (and he knows a damn sight more than either you or I – agreed?)

      If all the foregoing makes you feel I am a ‘council of despair’ then so be it – unfortunately it is a fact.

      I have had an argument on twitter with Hannan today on this very point and when pressed on this post he replied that if that is their attitude then we would effectively be out. When I queried that he informed me that he had followed my witterings but he found them ‘idle wind’ that he respects not.

      There we have a typical politician’s response when they do not wish to debate a particular subject. He knows damn well that what he wrote is complete rubbish and is now attempting to wriggle out! And I am supposed to respect someone like that?

      • Peter C says:

        I see Hannan has really ticked you off, David. Really it is pointless trying to engage these people in debate, they are not interested. If you aren’t one of the political class, an ‘expert’ in their eyes or a crony then your point of view is meaningless if it goes against their own. They are there to talk down to the likes of us and we are supposed to be grateful.

        Of course, it is also logical to expect that your name is ‘known’ to the political class. I have little doubt Cameron has been known to slag you off to his mates, a “God, there’s this bastard in my constituency who …” kind of thing. You can fill in the rest.

    • Peter C says:

      Graham, lets just leave it that there is no barrier to our leaving the EU should we so decide, that for all practical purposes EU law trumps national law in those areas where responsibility or competency has been ceded to the EU and can also trump national constitutions in those areas. I don’t say that it does, only that it can, because it is not that clear cut. However, several countries that joined the EU had to amend their national constitutions in certain areas in order to do so, just as the German government will have to amend their constitution if the Karlsruhe judgement calls the ESM unconstitutional and the German government wishes to drive ahead with it. This is where things are not clear cut and it depends on how you wish to interpret things. If they do change the constitution then it could be claimed that EU law has primacy over constitutional arrangements, if they don’t then the ESM thing is dead, but only dead because without Germany it can’t work, and you could argue that the German constitution had primacy. Neither POV would actually be right, but lets give it a rest now.

  5. Robin says:

    If Estonia can leave the USSR and Eritrea can leave Ethiopia I think we can leave anything we want IF the Powers That Be have any will .
    Even if we declare UDI like Rhodesia .

    • cosmic says:

      Yes, it depends on the political will and what’s left of the EU to negotiate with.

      In this case the political will to get out of the EU, whatever, just isn’t there, and within the political establishment there’s a grim determination to stay in at any price. I think they’d have the UK as the last and only member of the EU.

      As for treaty obligations, it assumes there’s a general respect for the treaties. If that’s the case, it’s unwise to be the only one breaking them. if they are generally blatantly disregarded, it’s unwise to be the only one sticking to them. The current discussion assumes there’s a coherent whole which is the EU and which is run according to the treaties which it’s based on.

      I think we’ll see changes in the Euro and the EU forced by a crisis which are outside the bounds of the treaties and which the treaties can’t be changed fast enough to legitimise. For instance, it looks likely that Greece will be ejected from the Euro. How can this happen within the treaties? What’s the mechanism for ejecting Greece from the EU? What happens if Germany refuses to pay for Club Med in perpetuity?

  6. graham wood says:

    Peter C: “Graham, lets just leave it that there is no barrier to our leaving the EU should we so decide”
    Agree. We have aired our views. We are of one mind on this blog about the objective – we disagree as to the means.

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