A Big Lie, Part 3

In Parts 1 and 2 I attempted to show that:

  1. The Heath Government, at the time of the negotiations for British entry to the EEC, committed itself to participate in the Community’s plan for economic and monetary union.
  2. It was fully aware that such a union would result in the loss of national economic sovereignty.
  3. It nevertheless pretended that our entry into the EEC would not result in any loss of essential economic sovereignty.

I will now attempt to outline two other ways in which EEC membership was bound, or should reasonably have been expected, to result in a loss of essential national sovereignty.

The Supremacy of EU Law

The European Communities Act 1972, Section 2(1) made provision for EU Law to be incorporated directly into domestic law without the need for Parliamentary legislation. Since Section 2(1) is virtually unintelligible to a non-lawyer, I will quote from the explanation provided by the House of Commons European Scrutiny Committee:

More simply stated, section 2(1) means that provisions of EU law that are directly applicable or have direct effect, such as EU Regulations or certain articles of the EU Treaties, are automatically “without further enactment” incorporated and binding in national law without the need for a further Act of Parliament. Section 2(1) applies to EU law now and as it develops in the future “from time to time” either by Treaty revision “created by” or interpretation by the Court of Justice of the EU “arising under”. So, when an EU Regulation enters into force, it automatically becomes part of national law, as it does in the other 26 Member States on the same day. The uniqueness of section 2(1) is that it gives effect to directly applicable or effective EU law without the need each time for implementing legislation, as would usually be required for the incorporation of other obligations assumed under international law by a dualist State. 1

Big Lie legal aspects ECA 2.1

Section 2(4), this time the original text from the Act itself, provides that:

any enactment passed or to be passed […] shall be construed and have effect subject to the foregoing provisions of this section 2

And Section 3(1) that:

For the purpose of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court).

The Report of the European Scrutiny Committee explains the combined effect of these two sections (they are referring to the amended Act, in which ‘Community’ has generally been changed to ‘EU’) :

Section 2(4) and 3(1) give effect to the doctrine of the supremacy of EU law, as interpreted by the Court of Justice, over national law; and where EU law is in doubt, requires UK courts to refer the question to the Court of Justice. As a consequence of the rule of construction in section 2(4) all primary legislation enacted by Parliament after the entry into force of the ECA on 1 January 1973 is to be construed by the courts and take effect subject to the requirements of EU law. This obliges the courts to disapply legislation which is inconsistent with EU law. This, in short, is what happened in the celebrated Factortame case: Part II of the Merchant Shipping Act 1988 was held by the House of Lords to be inconsistent with EU law and therefore disapplied. The same principle was followed by the House of Lords in disapplying discriminatory provisions in the Employment Protection (Consolidated) Act 1978. 3

So there you have it, EU law trumps national law. Parliament is no longer sovereign in the land. Legislation that it makes, if judged to be inconsistent to EU law, can be ‘disapplied’ by UK courts. We are no longer free to make our own laws as we choose.

The supremacy of EU Law was known by 1971

In the Factortame case, when it was returned from the ECJ to the House of Lords (then the highest court in the land), Lord Bridge pointed out that the supremacy of Community law over national law was known at the time that we joined:

If the supremacy within the European Community of Community law over the national law of member states was not always inherent in the EEC Treaty it was certainly well established in the jurisprudence of the Court of Justice long before the United Kingdom joined the Community. Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. Under the terms of the 1972 Act it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law. 4

Lord Bridge was right. In Costa v ENEL (1964) the ECJ ruled that:

By contrast with ordinary international treaties , the EEC Treaty has created its own legal system, which , on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply.

By creating a Community of unlimited duration, having its own institutions, its own legal capacity and capacity of representation on the international plane, and more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the states to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have created a body of law which binds both their nationals and themselves. 5

Similarly, the year before, in Van Gend & Loos (1963), the ECJ had ruled that:

the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields 6

Thus, by that time, the government’s legal advisers would have been aware that in the opinion of the EEC’s highest legal body, joining the Community would involve a ‘limitation of sovereignty’, even if only within certain fields.

The 1967 White Paper

In May 1967, the same month as it submitted a new application to join the Community, the Labour Government published a White Paper on the Legal and Constitutional Implications of United Kingdom Membership of the European Communities. 7

Murray Hunt, currently a Visiting Professor in the Oxford University Law Faculty, commented on the White Paper that:

The document was remarkable for … its seemingly deliberate attempt to minimise the legal and constitutional implications of membership. … It sought at every turn to play down the constitutional significance of membership. 8

Similarly, in a 2003 Working Paper for the Sussex European Institute at the University of Sussex, Przemyslaw Biskup, now an Assistant Professor at the Institute of European Studies, University of Warsaw, wrote that the White Paper:

does not indicate in an explicit way … the rule of supremacy of the Community law [which had already been established by 1967] and seems to portray the repercussions of accession from the Pro-Marketeer position. 9

1967 legal white Paper pro-Marketeer

Nevertheless, the White Paper did not hide the fact that Community law would take precedence over national law. Section 19 began:

Judgements of the European Court and decisions of the Council, Commission or High Authority imposing sanctions on individuals and undertakings are to be enforced by national courts

67 White Paper enforcement

Section 22 dealt with EEC Regulations, which were to have ‘direct internal effect’:

it would be necessary to pass legislation giving the force of law to those provisions of the Treaties and Community instruments which are intended to take direct internal effect within the Member states….

The constitutional innovation would lie in the acceptance in advance as a part of the law of the United Kingdom of provisions to be made in the future by instruments issued by the Community institutions – a situation for which there is no precedent in this country.

1967 White Paper direct effect

1967 legal white Paper innovation

Section 23 states explicitly that Community law would take precedence over national law, would ‘override’ existing national law that was inconsistent with it, and would prevent Parliament passing new legislation inconsistent with it:

The Community law having direct internal effect is designed to take precedence over the domestic law of the member states. From this it follows that the legislation of the Parliament of the United Kingdom giving effect to that law would have to do so in such a way as to override existing national law so far as inconsistent with it…. It would also follow that within the fields occupied by Community law Parliament would have to refrain from passing fresh legislation inconsistent with that law as for the time being in force.

1967 legal white Paper precedence

1967 legal white Paper fresh

So there you have it (as I said above), Community law trumps national law, and this was well known at the time. Existing law inconsistent with Community law would be overridden, and Parliament would have to refrain from enacting inconsistent legislation. The White Paper claims that this limitation on our freedom to legislate as we choose would not ‘involve any constitutional innovation’, since:

Many of our treaty obligations already impose such restraints – for example, the Charter of the United Nations, the European Convention on Human Rights and Gatt.

1967 legal white Paper restraints

Bradley and Ewing, in their ‘Constitutional and Administrative Law’, commenting on the White Paper, point out however that:

In this context, the examples of the UN Charter or the ECHR are beside the point, for unlike the EC Treaty these provisions do not seek to create directly effective obligations but rely on implementing legislation for any obligations they generate. 10

They ask what would happen if Parliament passes legislation consistent with what is Community law at that time, and then later the Community introduce new Regulations inconsistent with it, or the ECJ expand the scope of existing Treaty terms with judgements that could not have been expected at the time:

1967 legal white Paper Bradley

Denning’s opinion

On 10 May 1971, about two months before the Heath government White Paper, the Master of the Rolls, Lord Denning, gave judgement in the case of Blackburn v Attorney General. Raymond Blackburn was mounting a legal accession to the Treaty of Accession, on the grounds that if were to join the EEC, the government would be surrendering ‘the sovereignty of Crown in Parliament’. 11 Although Denning dismissed Blackburn’s appeal, he did acknowledge that entry to the EEC would involve the limitation of national sovereignty:

It does appear that if this country should go into the Common Market and sign the Treaty of Rome, it means that we will have taken a step which is irreversible. The sovereignty of these islands will thenceforward be limited. It will not be ours alone but will be shared with others. 12

Big Lie legal aspects Denning opinion

Le Sueur et al comment that:

Lord Denning’s judgement reveals that legal and political actors in the United Kingdom were very much aware of the consequences of joining the EEC. 13

Factortame (what later happened)

Subsequent events have demonstrated that the limitation on our national sovereignty was not theoretical only. Through the Merchant Shipping Act 1988, the UK government tried to prevent what was called quota-hopping: that is, the practice of fishermen of one nation registering their vessels under the flag of another, and thus gaining entitlement to a portion their national quota. After the ECJ ruled that the prevention of this practice would amount to ‘discrimination’ under the EEC Treaty (including Article 7), the House of Lords ‘disapplied’ the ‘offending’ provisions, so allowing the quota-hopping to continue, and Spanish fishermen were even granted compensation for the time in which they were not allowed to fish under British quotas. I don’t claim to be an expert on this case, and haven’t studied it in detail, but it does seem remarkable that it should be considered ‘discrimination’ that the British quotas should be kept for British fishermen.

In ‘Abuse of EU Law and Regulation of the Internal Market’, Alexandre Saydé describes quota-hopping as the artificial circumvention of national limitations on fishing activities. 14 He notes (p. 165, n. 285), that quota-hopping was explicitly designated as an ‘abuse’ by the Irish government. He describes (p. 166) the ECJ as ‘authorising quota-hopping’, a practice which, he says:

does contradict the secondary objective of relative stablity of fishing activities (Article 4(1) of Regulation 170/83), which stipulates that fishing possibilities must be proportionally allocated among local communities particularly dependent upon fisheries. Indeed, if fishing quotas are determined by taking into account the needs of local populations, then they should actually be used by those local populations, which implies … the prohibition of quota-hopping as abusive. The Court’s stance on quota-hopping is all the less understandable since it formally endorsed the system of national quotas and the principle of relative stability in the Romkes case (para 23) – only to later undermine it by allowing quota-hopping.

1967 legal white Paper quota-hopping

Thus, according to Saydé, who himself currently works as a Legal Secretary at the ECJ 15, the British government was prevented by the ECJ from ending an abusive practice.

Obviously, the British government didn’t know about Factortame in 1971. My reason for including the case here is to demonstrate, perhaps especially to the non-legally minded reader, that the supremacy of Community law did in fact have real-life ramifications, which amounted to a loss of national sovereignty. The case itself could not have been foreseen at the time, but it was almost inevitable, and would have been foreseen, that at some point or other a conflict of interests would lead to a case of this sort, where we would have to submit to a judgement by the ECJ, or leave the Community.

Expansion of competence

Mention may be made of one other way in which the 1967 White Paper sought to ‘play down’ (as Murray Hunt put it) the constitutional significance of membership. In Section 24, it is pointed out that the legislative powers of the Community institutions are limited, in the main, to economic purposes:

1967 legal white Paper mainly economic

More precisely (Section 25):

Community law operates only in the fields covered by the Treaties, that is, broadly: customs duties; agriculture; free movement of labour, services and capital; transport; monopolies and restrictive practices; state aid for industry; and the regulation of the coal and steel and nuclear energy industries.

In consequence:

By far the greater part of our domestic law would remain unchanged.

1967 legal white Paper notes greater part unchanged

What is more, the Community’s area of competence could not be extended into further fields without the unanimous agreement of the member States (Section 24):

1967 legal white Paper extension of competence

So far so good. The trouble is that at the same time that the British government was emphasising how limited was the area in which European law applied, it was also committing itself to playing its part in the expansion of that area. On 4 July 1967 at The Hague, George Brown the Foreign Secretary gave a speech to the Council of Western European Union, whose purpose was ‘to make clear to the Member Governments of the Communities the reasons for our application and its consequences as we see them.’ 16

He said first of all the British government accepted all three Treaties of the Community as they stood, subject only to certain adjustments requisite in the case of the accession of a new member. Then he went on to say that we were prepared to go further and ‘play our full part’ in the development of the Community into ‘wider fields’:

I will go further. We recognise that the Community is a dynamic organisation which has already evolved and will continue to evolve. If it is to be true to the spirit of the Treaties which established it, the Community’s institutions will develop and its activities will extend to wider fields beyond the activities covered by the existing provisions of the Treaties. We believe that Europe can emerge as a Community expressing its own point of view and exercising influence in world affairs, not only in the commercial and economic but also in the political and defence fields. We shall play our full part in this process.

1967 legal white Paper Brown

In his Ditchley Foundation Lecture, delivered three and a half weeks later, Robert Menzies, the former Prime Minister of Australia, quoted exactly the same portion of Brown’s speech and then commented:

Therefore, Federation or no Federation, success in the current application would diminish Britain’s Parliamentary Sovereignty. 17

Fast forward to the 1971 White Paper recommending entry to the EEC, and we find a similar commitment, placed incongruously at the end of a Section (30) on the preservation of national identities, to playing a full part in the development of the Community into non-economic fields. Where necessary, it is implied, they will ‘pool’ their ‘authority’ to do so:

Where the members reach common agreement to pool resources and authority, it is done because they consider it is in their interests to do so. At present the Communities’ institutions are purely economic. But if the development of European policies in non-economic fields calls for new institutions, then as a Member Britain will play a full and equal part in devising whatever additions to the institutional framework are required.

1967 legal white Paper full part

I am not sure whether the government was still in 1971 using the argument that the admitted precedence of Community law would only have a limited impact because it was restricted to the economic field. Certainly, Enoch Powell was still able to refer to this argument in his speech to the House of Commons of 17 February 1972 in opposition to the European Communities Bill. He first describes the loss of legislative supremacy of Parliament, and of national judicial independence, and then comes to the ways in which these ‘sacrifices of sovereignty’, which he says are not disputed, are sought to be made palatable:

The first is the de minimis argument – “Don’t worry; it’s not very important, because it will not refer to many subjects or very important matters.” 18

Powell admits that at that time the great majority of Community law pertains to only two subjects: the common tariff, and the common agricultural policy. But then he points out that the very ground on which the Prime Minister and others have been advocating for British membership

is not that the effect will be minimal but that this is intended to lead progressively to the political unification of this country with the countries of Western Europe. That has been said candidly, frankly, over and over again. So, although this surrender begins as minimal, it is intended to become maximal; and that intention is implicit in the policy and declarations of the Government.

Whether or not the government were still using this de minimis argument in 1971, it is certain that they were claiming that:

There is no question of any erosion of essential national sovereignty

at the same time that they were committing themselves to participating in the development of the Community into non-economic fields. This indeed came to pass in due course, and especially after the signing of the Single European Act in 1986, and its extension of Community competence into the environmental field, followed by many further extensions of competence in subsequent Treaties. And they knew that in every field where the Community had competence, Community law would take precedence over national law, resulting in the loss of national sovereignty in that field.

Conclusion

In the White Paper of July 1971 in which the Heath government recommended entry to the EEC, it was claimed that there was ‘no question of any erosion of essential national sovereignty’. I claim that this was a big lie, for three reasons:

  1. In the course of the negotiations for entry, and notably during the Heath-Pompidou Summit of May 1971, the British government had made clear its willingness to participate in the plan for economic and monetary union. At the same time, the government’s internal assessment was that economic and monetary union would result in the virtual disappearance of national economic sovereignty.
  2. The supremacy of Community law over national law was by then well established. Only two months before the Master of the Rolls had stated explicitly that as a result entry to the EEC would result in a limitation of national sovereignty.
  3. We had committed ourselves to participating in the further development of the Community into non-economic areas. It was to be expected therefore that there would be ever increasing restraint on Parliament’s freedom to legislate as it chose.

Finally, in support of my contention, here is an extract from Allan Tatham’s ‘Enlargement of the European Union’:

on the thorny issue of sovereignty, the White Paper, merely asserted that ‘there is no question of any erosion of essential national sovereignty; what is proposed is a sharing and an enlargement of individual national sovereignties in the general interest.’ It has been observed: ‘Such patent dissimulation infuriated opponents of entry and left a painful legacy for those in Britain today who advocate greater integration’. 19

A big lie notes patent dissimulation

The quotation is from Desmond Dinan, currently Jean Monnet Professor in European Public Policy at George Mason University, and a former adviser to the European Commission. He describes the White Paper’s claim as ‘patent dissimulation’. I call it a big lie.

Andrew Chapman,

31 March 2016

Notes:

  1. House of Commons European Scrutiny Committee, The EU Bill and Parliamentary sovereignty, (HC 633-1, 7 December 2010) p. 5. Link.
  2. European Communities Act 1972. Text of statute as originally enacted. p. 3. Link.
  3. House of Commons European Scrutiny Committee, The EU Bill and Parliamentary sovereignty, (HC 633-1, 7 December 2010) p. 5. Link.
  4. Paul Craig, The ECJ, National Courts and the Supremacy of Community Law. p. 41. Link.
  5. Judgement of 15.7.64, Case 6/64, Costa v. ENEL. p. 593. Link.
  6. Judgement of the Court, Van Gend & Loos, Case 26-62 (5 February 1963) p. 11. Link.
  7. Legal and Constitutional Implications of United Kingdom Membership of the European Communities (May 1967). Link.
  8. Murray Hunt, Using Human Rights Law in English Courts, (Oxford: Hart, 1997) p. 50
  9. Przemyslaw Biskup, Conflicts Between Community and National Law: An Analysis of the British Approach (SEI Working Paper No. 66, University of Sussex, June 2003) p. 22
  10. A W Bradley, K D Ewing, Constitutional and Administrative Law, 14 ed. (London: Pearson, 2007) p. 140
  11. Andrew Le Seur et al, Public Law: Text, Cases, and Materials, 2nd ed. (Oxford University Press, 2013) p. 822
  12. Andrew Le Sueur et al, Public Law: Text, Cases, and Materials, 2nd ed. (Oxford University Press, 2013) p. 822
  13. Andrew Le Seur et al, Public Law: Text, Cases, and Materials, 2nd ed. (Oxford University Press, 2013) p. 822
  14. Alexandre Saydé, Abuse of EU Law and Regulation of the Internal Market (Oxford: Hart, 2014) p. 165
  15. Link.
  16. The United Kingdom and the European Communities (HMSO 1967). Link.
  17. Robert Menzies, The English-speaking peoples in a changing world (The Ditchley Foundation Lecture VI, 28 July 1967). Link.
  18. European Communities Bill, HC Deb 17 February 1972 vol 831 c 700. Link.
  19. Allan F. Tatham, Enlargement of the European Union (Kluwer, 2009) p. 20