The following compiled by Alistair McConnachie was published originally in the January 2006 issue of Sovereignty.
Back in January 2006, some correspondence in The Scotsman illuminated the nature of British Constitutional law in relation to the sovereignty of Parliament and membership of the EU.
Pro-sovereignty activist Dr Denis Cooper started the ball rolling with his letter on the 3-1-06:
Your correspondent (Letters, 30 December) distinguishes correctly between the internal and external sovereignty of a state. It is also important to recognise that "sovereignty" has never meant "omnipotence". Even the United States, the world's most powerful country, is not omnipotent. But as a sovereign state it is acknowledged as the supreme authority within its own territory.
Legally, the sovereignty of the United Kingdom, internal and external, remains intact and unimpaired. It is simply not being exercised, because our MPs have, in effect, contracted out much of their work to the EU. But that contract can be terminated at any time, by a new Act of Parliament repealing the 1972 European Communities Act.
The original correspondent wrote in again apparently to suggest that Britain was not sovereign, because: "successive treaties implementing ever-closer union contain no provision for withdrawal by a member state."
But how does this misreading of British constitutional law help the cause of Britain's withdrawal from the EU?
Dr Cooper responded in a letter published on 10-1-06:
Your correspondent doubts whether the Westminster parliament can terminate its contract with the European Union simply by repealing the European Communities Act 1972.
However, that is precisely the basis on which the British people voted to remain in the then Common Market, in the 1975 referendum.
The government leaflet, distributed to every household, said: "Fact No 3: The British parliament in Westminster retains the final right to repeal the Act which took us into the Market on 1 January, 1973. Thus our continued membership will depend on the continuing assent of Parliament."
That remains the case. Indeed, in September 2004, the Foreign Secretary, Jack Straw, told the Commons: "Because we are a sovereign nation, parliament itself will have the final right to decide, at any stage, whether it wishes us to remain a member of this treaty-based organisation."
UK sovereignty remains intact and unimpaired. We only have to insist that our MPs do all the work we pay them for, rather than sub-contracting much of it to Brussels.
Again the correspondent wrote to complain that: "There is no provision in any of the EU treaties for voluntary withdrawal by a member state. The option only became available under the European Constitution, now withdrawn. However, it is surely significant that a new provision was deemed necessary."
However, this is to misunderstand British Constitutional law. No withdrawal provision is necessary in any Treaty because we have a Parliament which can pass any Act it likes, including an Act to withdraw from any Treaty it has previously signed.
As Dr Cooper responded, in a letter published on the 23 Jan 06:
Your correspondent asks: On what authority do MPs "contract out" their responsibility for law-making to the EU? The authority is still the original Act passed by the Westminster Parliament in 1972, as amended in the light of later European treaties, and like any other Act open to repeal at any time.
The absence of an "exit clause" is immaterial, as Baroness Scotland informed the Lords on January 11th 2000: "We see no need for the Treaties governing membership of the Union to include a specific provision on unilateral withdrawal. It remains open to Parliament to repeal the European Communities Act 1972, the logical consequence of which would be to withdraw from the EU."
The European Court of Justice has no authority beyond that lent to it by the sovereign member states, and it exceeded that delegated authority in 1962 when it asserted that those states had agreed to a permanent limitation of their sovereign rights. That pretension has since been rejected by the national courts in every state where the question has been posed.
As Dr Cooper has pointed out, the Treaties which Parliament has signed, do grant EU law supremacy in certain areas, but because these Treaties are only legal as a result of the say-so of an Act of Parliament, then Britain's obedience to them can be over-ruled by a new Act of Parliament.
Thus, Parliament remains sovereign.
On this theme, also see the comments reprinted in our May 2007 issue. As we said in our February 2002 issue, Britain is like a man locked in a cage with the key in his hand. It's time to turn the lock!
||Quotes on Parliamentary Sovereignty...
EU Membership: Withdrawal
Lord Pearson of Rannoch asked Her Majesty's Government: Why, given that the treaties governing NATO and the World Trade Organisation specifically provide for the free and unilateral withdrawal of member states from those organisations, no such provision exists in the treaties governing membership of the European Union.[HL331]
Baroness Scotland of Asthal: We see no need for the Treaties governing membership of the Union to include a specific provision on unilateral withdrawal. It remains open to Parliament to repeal the European Communities Act 1972, the logical consequence of which would be to withdraw from the EU. The terms of such a withdrawal would be for the Government to negotiate with the other member states.
Hansard, Written Answers, Tuesday, 11th January 2000.
Mr. Jack Straw: Because we are a sovereign nation, Parliament itself will have the final right to decide, at any stage, whether it wishes us to remain a member of this treaty-based organisation.
The Secretary of State for Foreign and Commonwealth Affairs quoted in
Hansard, Oral Answers to Questions
Thursday, 9th September 2004, Column 888.