Parliamentary Supremacy

I have been sent a copy of the following email sent by Denis Cooper to a recipient in the UK Parliament the contents of which are self-explanatory and of supreme importance: Quote Sent: Tuesday, January 15, 2008 12:18 PM Subject: Declaration 17 annexed to the Treaty of Lisbon Dear, I wish to draw your attention to Declaration 17 annexed to the Final Act of the Lisbon Treaty, page C306/256 here: Link which asserts a legal doctrine which is fundamentally incompatible with the doctrine of parliamentary sovereignty. It starts: "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." and then reproduces an Opinion from the Council Legal Service: "It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community 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."’" In my view the Conservative party should propose an amendment to the European Union (Amendment) Bill to explicitly repudiate this Declaration, asserting that notwithstanding the EU treaties and EU laws, and the doctrine of the European Court of Justice, the British Parliament remains the supreme law-making body for the United Kingdom, and giving a crystal clear direction to British courts that they must continue to uphold the doctrine of parliamentary supremacy. If this is not done, then if at some point in the future MPs decided that they could not accept a particular EU law passed by qualified majority voting, or a particular EU decision agreed by Ministers without the prior approval of Parliament, or a particular judgement of the Court of Justice interpreting and/or extending EU law, and accordingly passed legislation contrary to that EU law or decision or judgement, they could find that British judges declared their new law to be invalid, ruling that the British Parliament had irrevocably surrendered its legislative supremacy by endorsing Declaration 17. I do not see how any MP can assume that such circumstances would never arise, and nor do I see how the present MPs can take it upon themselves to put at serious risk the future legislative supremacy of the Parliament of the British people, by default, and without the knowledge and consent of the British people. An amendment along the lines I suggest would avoid any possible doubt developing in the minds of British judges, making it clear to them that despite Declaration 17 annexed to the Lisbon Treaty they must continue to rank the will of the British Parliament above the will of the European Court of Justice, and they must continue to observe the long-established principle that no Parliament can bind its successors, by means of an international treaty or by any other mechanism. Therefore I urge you to put it to your colleagues that the Conservatives should table such an amendment. Yours etc Unquote Explanatory background to this email was provided as follows: Quote

For clarity, the primacy claim was imbedded in the previous Treaty establishing a Constitution for Europe as Article I-6:

http://eur-lex.europa.eu/en/treaties/dat/12004V/htm/C2004310EN.01001101.htm

"The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States."

plus there was Declaration 1:

http://eur-lex.europa.eu/en/treaties/dat/12004V/htm/C2004310EN.01042001.htm

"The Conference notes that Article I-6 reflects existing case-law of the Court of Justice of the European Communities and of the Court of First Instance."

To disarm critics, the transparent primacy claim of Article I-6 of the previous Treaty has been removed, and relegated to Declaration 17 annexed to the Final Act of the Lisbon Treaty, page C306/256 here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2007:306:0231:0271:EN:PDF

On the one hand, from the federalists' point of view this has the merit of disguising the claim. On the other hand, whereas Article I-6 was an integral part of the previous Treaty, Declaration 17 is a non-binding political declaration attached to the Treaty of Lisbon, and potentially therefore it can also be detached from the Treaty.

The federalists' objective is to induce the national legislature in each member state to endorse Declaration 17, perhaps unwittingly, in the expectation that the judges within that state would subsequently conclude that the legislature had resigned its legislative supremacy, effectively transferring its sovereignty to the ECJ as the final arbiter of the EU treaties and EU laws.

If that ploy was successful, in our case the consequence would be that British judges would no longer accept the doctrine of the legislative supremacy of the British Parliament, but would instead accept the doctrine of the primacy of EU treaties and laws, as warned by Martin Howe QC in his 2003 booklet "A Constitution For Europe: A Legal Assessment of the Draft Treaty".

Howe explains that across the EU national courts have rejected the primacy claim made by the ECJ, and the reason the primacy Article I-6 (or I-10 at the time of writing) was put in the previous Treaty was that "the draft Treaty is attempting to prevail over and reverse these national decisions". He later writes:

"... Parliament will have enacted Art I-10 [renumbered as I-6 in the final text], which states that the Constitution and European laws have primacy over national laws. This would give rise to an argument that by doing so, Parliament has abolished its own supremacy."

"... the present judicially approved view is that Parliament lacks the power to take this step because it cannot fetter its own sovereignty or deprive itself of the right to repeal the Act. However, the doctrine of the supremacy of Parliament is not written in stone, but rests on continued judicial acceptance of its validity."

"It is on this kind of fundamental question that a drift of judicial opinion can occur over time"

This is why I believe that the Conservatives should table what is really a modest amendment to the European Union (Amendment) Bill, repudiating Declaration 17, asserting the continuing supremacy of Parliament notwithstanding the EU treaties, and issuing a clear direction to British courts that they should continue to uphold the supremacy of Parliament notwithstanding the EU treaties.

For those who haven't already seen it, this is the letter I sent to my MP ......... about this. I suggest that anybody else who has a Conservative MP should send a similar letter. Unquote