Opposing the EU Bill

The EU Bill is back in parliament today, amid speculation that Cameron has a Europe-fuelled rebellion on his hands. Despite the talk, the chances are that the Bill will go through Parliament wholly unscathed in its first test.
 
Today’s debate is about the so-called ‘sovereignty clause’ – or Clause 18 – within the EU Bill. Of the Bill’s 17 pages, the clause only takes up four lines, but has still managed to cause the most fuss (the vast majority of the text relates to the EU ‘referendum lock’).
 
The government claims that Clause 18 confirms that EU law “is only recognised by virtue of the authority of acts of Parliament”, and that it seeks to counter fears that parliamentary sovereignty can “be eroded by decision of the courts”.
 
Such reasoning hasn’t convinced some Tory backbench MPs. They say that parliamentary sovereignty is not based on common law – which is hammered out by judges not MPs – but on parliament’s victory over the monarchy hundreds of years ago. In other words, parliament is sovereign because parliament is sovereign, not because judges say so. These MPs worry that the EU Bill could undermine this principle rather than strengthen it.
 
The confusion arises from an unfortunate formulation in the explanatory notes of the Bill which states that Clause 18 reinforces the “common law principle” that EU law takes effect through the will of parliament – which implies that judges could at some point take it away.
 
The explanatory note should be corrected to stamp out this confusion because the sovereignty clause itself specifically addresses a different point – the primacy of parliament over EU law. It’s hard to see how such a clause will do any harm if allowed to stand alone.
 
But you can understand why backbench MPs have chosen the EU Bill to make this constitutional point. The key constitutional rules of the UK, parliament’s sovereignty and the primacy of the laws it makes, are no longer always obvious. The first is arguably coming under pressure from the domestic judiciary. The second is also consistently under attack from the ECJ. (The link between the ECJ and British judges adds to the complication.)
 
An unfortunate side effect, however, is that the debate surrounding the ‘common law principle’ has been mixed up in most media and public discussions with the Bill’s other and arguably more important aspect for UK-EU relations – the ‘referendum lock’. This seeks to identify where the EU may extend its power and introduce some controls to stop that march. There’s a link with the sovereignty issue here, through potential judicial challenges to parliamentary decisions made under the referendum lock, but, for the sake of clarity, the two should be treated separately.
 
Today, MPs should insist on revisions to the confusing explanatory notes to the Bill in order to define parliamentary sovereignty. They should then focus their full efforts on making the referendum lock as strong and watertight as possible (we have proposed some key amendments here).
 
Mats Persson is Director of Open Europe