The European Journal examines David Cameron’s historic speech of 4 November 2009, ‘A Europe policy that people can believe in’, offering a consideration of the key points.

In David Cameron’s historic speech of 4 November 2009, “A Europe policy that people can believe in”, there are a number of assertions made which require further and careful consideration to ensure that the Conservative Party delivers a proper European policy which the British people and the Party itself can believe in.

1. “No longer a treaty…”?

The assertion that the Lisbon Treaty “is no longer a treaty” is not correct. The European Union Amendment Act, in accordance with our constitutional requirements as enacted, adds the Treaty to the list of treaties under Section 1 of the European Communities Act 1972, clearly recognising its continued existence. This Act provides that the Treaty becomes enforceable United Kingdom law. The actual provisions of the Treaty, however obscure, become the law of the United Kingdom through Section 2(1) ECA 1972 and, under Section 3 ECA 1972, fall to be enforced by the courts of the United Kingdom. All the judgements made by our courts in respect of the individual treaties, and bearing in mind that Lisbon consolidates them all, refer to the provisions of the Treaty in question – thus no one has ever suggested before that the Lisbon Treaty or any other European treaty no longer exists. It is certainly true that once all the member states have completed their ratifications in accordance with their constitutional requirements, firstly the individual member states agree to carry out these legal obligations and, secondly, it does become the law of the European Union. However, the Referendum Act 1975 is an exact precedent for a Referendum held after ratification by all the member states. Juggling with words does not alter the above and a Referendum can and should still be held on the consolidated treaties. The Referendum Act 1975 provided for an “in or out” Referendum. There has not been a Referendum since 1975 and millions of voters have been disenfranchised. A Referendum could still be held on the terms of our relationship within the European Union without it becoming a Referendum on “in or out”. A good question would be “Should the United Kingdom Government renegotiate the terms of our relationship within the European Union?” Opinion polls regularly demonstrate up to 88 per cent of the population wanting such a Referendum.

The argument that holding a Referendum would not make the Lisbon Treaty, or any provision in it, disappear is irrelevant because what is at issue is the application of these provisions to the United Kingdom itself.

2. A Referendum on “something else… anything else”

The need for a Referendum is not based on “some new pretext” or “for the sake of it”. It is because there has not been a Referendum since 1975 and the use of the European Communities Act 1972 has now been extended since 1972 into areas of government with new functions which have enlarged the original legal obligations (whatever aspirations there may have been for political union) into a completely new but evolving sphere of activity and jurisprudence of the ECJ. These have combined to drastically undermine the practical effect of our democratic Parliament and through majority voting, codecision and European regulations and rulings of the European Court have permeated virtually every nook and cranny of our daily lives. These include the running of our economy on a conveyor belt of EU law which is obvious to anyone who cares to go through the statute book and the agendas of the European Scrutiny Committee on a weekly basis.

There is nothing “phoney” about wanting to sustain a democratic system of government in line with the wishes of the electorate. Furthermore, the economy is largely driven within European Union rules as to public expenditure. The success of our economy is and will be profoundly damaged by overregulation by existing European laws. The same could be said of the CAP, the CFP, the regulation of the City of London, the billions spent on overregulation of British businesses, the rebate, regional policy making, energy policy, consequences of immigration and the £2000 for each man, woman and child which the EU costs according to the Taxpayers’ Alliance.

In December, the Conservative Party was whipped and voted against the new European financial regulations. It is realistic and serious policy to recognise the threat to the City of London by the loss of legal control over financial services. This involves the establishment of new regulations, majority voting and co-decision, and the ultimate jurisdiction of the European Court of Justice. Given the substantial percentage of Gross Domestic Product represented by the City of London, it is essential in the national interest, as David Cameron and George Osborne recognise, to ensure that Britain is not simply left with “national supervision” over this sector. This is why the Conservative Party voted against the financial regulations and must continue to reassert its control over them.

It certainly would not be a waste of everyone’s time, and taxpayers’ money, to have a Referendum which would have such practical effects as to renegotiate a restoration of democracy and economic balance from the disastrous failure of an obsolete system into a new relationship of “an association of member states” as David Cameron recently called it. This would not be a “waste of time”, would it? The British people would thank the Conservative Party. A Referendum is the right even to express a view without presuming the result and it is practical because our relationship with the European Union, enforced through the laws and constitutional arrangements via the ECA 1972, has a monumental practical effect on the daily lives of the people of this country, not to mention the other member states.

Furthermore, because the Lisbon Treaty is a self-amending text there is serious reason to suppose that an attempt to unwind amendments made within the provisions of the Lisbon Treaty will be subject to challenge in the courts, unless of course the Referendum was expressed to be “notwithstanding the European Communities Act 1972” with an obligation on the judiciary to construe the Referendum Act accordingly, as to which see below.

3. The case for sovereignty

The fact that we do not have a written constitution does not alter the fact that the European Communities Act 1972, as Lord Bridge made clear in the Factortame case and in line with the judgements of Lords Denning (McCarthys v. Smith), Diplock (Garland v. British Rail) and Laws (Thoburn v. Sunderland County Council), is not only a voluntary Act but can be overridden by clear, precise wording inconsistent with ECA 1972 and the judges are obliged to give judgements accordingly. We do have an “explicit legal guarantee” because of our constitutional position in relation to the sovereignty of Parliament. The problem has arisen that the textbook doctrine of the supremacy of Parliament has been severely eroded in practice since 1972, particularly since the Maastricht Treaty, which created European government, and now the Lisbon Treaty. An effective Sovereignty Act, which is to be welcomed, would deal with what is described as “a danger that over time” that our courts will come to regard ultimate authority as resting with the EU. This is because in the context of the Lisbon Treaty the declaration of primacy is included as a guide to our courts, as with other member states, as to where the sovereignty actually lies and not only over our laws but also over our constitution. Declaration 17 restates the case law referred to below, but also as further guidance of the courts (otherwise, it would not be there) states that “The Conference has also decided to attach as an annex to this final Act the opinion of the Council Legal Service of the primacy of EC law (11197/07(JUR260).” This emphasises that “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.”

An eminent constitutional authority has said: “Constitutional interpretation by judges has a long history distinguishing it from ordinary statutory interpretation. Generally a more dynamic or flexible approach is adopted, most likely employing other jurisprudence from other countries and systems. This may give rise to a degree of judicial incremental law-making commensurate with the organic growth of the Constitution itself that has the potential for developing constitutional rights, immunities and powers beyond the literal meaning of the words adopted. The potential for a possible jump in judicial interpretation towards a more purposive approach to legal rights under the Constitution should not be underestimated.” Nor should this warning go unheeded.

The problem has accumulated since the White Paper of 1967, “Legal and Constitutional Implications of United Kingdom Membership of United Kingdom Communities”, further endorsed in ECA 1972. As late as June 2007, Lord Justice Rix stated that “Community law is of course regarded in England as English law. It is part of the English legal corpus. It may derive from Brussels, Strasbourg or Luxembourg, but it is part and parcel of our law. And of course where it applies, it takes precedence over any inconsistent provisions of English law of domestic origin… The principles are founded in the originating statute, the European Communities Act 1972, and in the binding case law of highly important and extremely well-known House of Lords decisions. These cover such matters as the precedents of Community law over national law and the manner in which domestic legislation must be interpreted, in an area covered by Community law, so as to render the English statute, if it is at all possible to do so consistent with the Community Law. This is a style of interpretation with which, for some decades now we have been growing increasingly familiar…” Similar remarks have been made by Lord Steyn and Lord Hoffman. The words “if it is at all possible to do so” mean that in the light of what Lord Denning, Lord Diplock and Lord Justice Laws have stated in their seminal constitutional judgements that where the English statute is clear in overriding Community law by the words, for example, “notwithstanding the European Communities Act 1972” that the English courts are obliged to give effect to the latest clearly expressed statute of the United Kingdom. The Sovereignty Act would need to do this explicitly or be otiose because it omitted to make clear express provision inconsistent with the European Communities Act 1972 and thereby become a Trojan Horse for interpretation by the Supreme Court/ECJ as against Parliamentary sovereignty.

There is a whole line of ECJ cases, which goes back to Costa, Van Gend, Handelsgesellschaft and Simmenthal, all of which contain the most explicit assertions by the ECJ which under Sections 2 and 3 of the European Communities Act 1972 have lacked only the endorsement of primacy since the treaties commenced. What the European Court has asserted has now been endorsed in Declaration 17 in its application to the consolidating Lisbon Treaty and is therefore now open to interpretation and judgement by our own courts as against our own Parliamentary sovereignty. Hence the need to re-assert our Parliamentary sovereignty immediately. Merely to declare that “ultimate authority stays in this country, in our Parliament” would be meaningless if it did not, in very precise wording achieve the practical result of maintaining that sovereignty and democracy. It is contradictory to say that “this is not about Westminster striking down individual items of EU legislation” and then saying “it is about an assurance that the final word on our laws is here in Britain [United Kingdom].” If it is merely a restatement of the textbook definition of parliamentary sovereignty without providing for the overriding of European laws and assertions overriding our constitution, then it is all a meaningless exercise, much as the promise understood to grant a Referendum will be exploited by UKIP.

4. How the transfer of sovereignty always happens again

The assertion that “this never happens again”, i.e. to transfer power to the EU without the say of the British people, will not resonate with them given the abandonment of the Referendum – whatever reasons may have been given. As to amending the European Communities Act 1972, a Sovereignty Bill drafted properly would include prohibiting the transfer of power (including by reference to existing laws and assertions of EU law overriding our constitution) to the EU without a Referendum. In any case, there is already a prohibition, under the European Elections Act 1978, to increase the powers of the European Parliament without the specific endorsement of the UK Parliament. There is no reasonable constitutional comparison to either the German or Irish constitutional arrangements because both have written constitutions. The German Constitutional Court judgement of 30 June 2009 warns that the Passarelle Clauses envisage the possibility of a de facto Treaty amendment for certain policy areas without a de jure national parliamentary or referendum ratification. The Court argued that this would potential provide for automatic integration without democratic compliance – certainly as far as the German Constitution is concerned. The German Court asserts (somewhat in line with what is stated above in paragraph 3 regarding the voluntary nature of ECA 1972) that the authority of the European Union is founded on the decisions of sovereign states subject only to their own national constitutional law. However, so long as member states, including the United Kingdom, continue remorselessly to cede powers and sovereignty, the point is reached when there being such an endorsement of the primacy of European law (as asserted by Declaration 17) that there is such a reduction of national sovereignty as to be, in practice, a virtually autochthonous European constitutional arrangement.

The idea that primary law would be needed to overcome the Passarelle (Ratchet Clause) without the specific words “notwithstanding the European Communities Act 1972…” would mean next to nothing and would be open to challenge within the Supreme Court / ECJ.

Without a proper and effective Sovereignty Act, which would simply be swept away like leaves in the autumn wind, stipulated in detail in the Manifesto, there would be no “real protection for our democracy” whatever our leaflets in our Manifesto might say. A Sovereignty Act must not become by omission or by judicial interpretation a Trojan Horse for the supremacy/sovereignty of European law as against our Parliament and constitution. This would happen if the asserted and now declared primacy of EU law is not rebutted specifically in the Sovereignty Act and promises which amount to no more than window dressing would be dangerously counter-productive.

5. British guarantees

David Cameron’s Centre for Policy Studies speech of November 2005 was specific. The words “we will want to negotiate the return of Britain’s opt-out” is not the same as “For Britain, the first priority must be the return of powers over employment and social regulation. This would be the strategic imperative of my European policy.” David Cameron also said, “The EU must abandon the hubristic constitutional project once and for all.” Hear, hear. Furthermore, confining or appearing to confine repatriation of such legislation, including the Working Time Directive to mere “aspects” is far too limited. Merely negotiating over the Charter of Fundamental Rights would not be enough, as are the words “we must be absolutely sure that this cannot be used by EU judges to reinterpret EU law affecting the UK.” The European Scrutiny Committee report on this matter is selfexplanatory. We certainly need a complete opt-out from the Charter but this raises all the questions regarding sovereignty and interpretation of primacy set out above. Similar problems arise in the aspiration to repatriate criminal justice. The problem has already been created under the Lisbon Treaty via ECA 1972 and what is set out above.

In insisting that “taking back power in these areas or negotiating arrangements that suit the UK is not something we can do unilaterally” could well become, if negotiations were to fail a waste of time given the wall of anonymity that we would be up against unless the Sovereignty Act contains all the legal and constitutional mechanisms to support the degree of political will needed to achieve laudable objectives. It is not that I am questioning the desire; it is whether there is the political will to ensure the result. There is a present danger in the suggestion that if the negotiations were to fail that we would walk away from taking the action needed in the national interest to repatriate specific laws and to use Parliamentary sovereignty to full effect as a matter of political will to override the European Communities Act 1972.

Constitutions have come and gone throughout the world and in Europe and the constitution of the United Kingdom itself has ranged from absolute monarchy to parliamentary democracy, so there is no doubting that political will is necessary given the historic and the practical effects of not doing so. If what it boils down to is that we would never use the sovereignty of the United Kingdom Parliament to protect our vital national interests, including our Parliamentary sovereignty, then the future is indeed bleak – nothing short of appeasement. The idea that “the expertise of officials from the Foreign Office and other relevant departments” will be of any use whatever in this context, given the developments since 1972, is to say the least not a course I would remotely recommend other than to ascertain that they are determined to resist an effective Sovereignty Act. Without taking decisive action, which the welcome guarantee of a Sovereignty Act can achieve, then the guarantees will be unrealistic and undeliverable and our democracy and our national interests will be undermined.

It is not tenable to argue that we must concentrate exclusively on retrieving the economic chaos which this Labour Government has overseen without dealing with those aspects of European law which have contributed so much to the disastrous decisions which they have made because our economy is driven so much by European policy and law, as I have mentioned above.

6. In the longer term

We have been heading in the wrong direction and not merely in a centralising direction, but in a centralising system. We are not heading for one, we are in it. It would be too late to “return to this subject in a manifesto for the Parliament after the next one.” It is already nearly too late, barring only a full implementation of a commitment to a constitutionally and legally effective Sovereignty Act.

These issues have a long and practical history. The constitutional struggles of the late 1640s between Charles I and Parliament and the failure then to achieve a constitutional monarchy led to his execution in 1649. Similar issues arose regarding the restoration of the monarchy on a new practical constitutional footing in 1660. The abandonment of the Stuarts and the succession of the Hanoverians involved another transfer of practical constitutional power. So did the Reform Acts of 1832 and 1867 leading to the vote for women. These constitutional step changes were a pragmatic acceptance that the constitution was evolving in stages (sometimes based on pragmatic “fictions” of where the sovereignty really resided). All these developments took us towards a parliamentary democratic system of government.

Now we are moving away from parliamentary democracy, as David Cameron’s speech indicates. Allowing the consolidating Lisbon Treaty arrangements to bed down and become accepted by the effluxion of time as the presumed order of things will undermine our system of democracy and government, which is why we fought it so vigorously on a united front together, including a three-line whip on a call for a Referendum.

The call for a Sovereignty Act is admirable, but it must be in practice what it suggests by name, with practical consequences affecting the daily lives of the voters of this country. An effective Sovereignty Act, as an act of statesmanship, will create in the historic landscape, particularly since 1972, a pathway to improving the operation of the European Union into what David Cameron has rightly called “an association of member states”. It will also “spread democracy and the rule of law across our continent” and, as Prime Minister, he would guarantee that “we will never allow Britain to slide into a federal Europe” – including our being over-dominated by the interests of other member states, which we will simply not be able to influence in practice precisely because of the dynamics of majority voting, codecision and primacy, and the clear and obvious failings of the European Union on the economic as well as the political front. This is “what this is all about” and a policy on Europe that is worth believing in.