UK Sovereignty and the EU illuminated by watery analogy.
“…none to dispute sovereignty with me lord of the manor”
Sovereignty is a concept that is context-sensitive. This characteristic of sovereignty makes it a fluid notion that can fill both the champagne flutes and the beer glasses of debate.[1] It is a liquid concept capable of floating on diverse intellectual streams of thought.[2]
With interpretations of sovereignty that are antithetical, an apparently logical conclusion would be that such opposing accounts must be irreconcilable. However even conflicting interpretations of sovereignty can have validity. That is so because of the fluid nature of the concept.
In the fifth century BC, the Greek philosopher Heraclitus said that you could never step into the same river twice. Because fresh and different waters flow, even in the same river, the impression of each particular instant is unique. Each individual can give an accurate description of that particular moment. So where a reasoned interpretation of sovereignty is provided, based on a rational assessment of the concept at any particular time, it may therefore conflict with other interpretations - yet still remain valid.[3]
What river could be more fitting to use in analogy of sovereignty, for a discussion of a concept that will eventually[4] wash heavily against the walls of the Westminster parliament, than the Thames? Indeed there seems to be a number of coincidental affinities between the River Thames and the concept of parliamentary sovereignty.
One such is that in the very same year that the naval vessel The Thames was launched, A.V. Dicey’s seminal work on parliamentary sovereignty was published. Dicey’s notion of the sovereignty of Parliament ‘from a legal point of view’ is that ‘Parliament could make or unmake any law whatever’ and that ‘no person or body could override or set aside the legislation of parliament’ this being [in 1885] ‘the dominant characteristic of our political institutions’.[5] The vessel The Thames was scuttled by its subsequent South African purchasers just as Sir Ivor Jennings view on sovereignty partly scuppered Dicey’s traditional theory of sovereignty some decades after Dicey’s death. Yet Dicey, himself, had reviewed his concept of sovereignty well before Jennings.
Dicey’s Introduction to the 8th edition of the Law of the Constitution, written in 1914, states: “The present edition, therefore, of the Law of the Constitution, is in substance a reprint of the seventh edition; it is however accompanied by this new Introduction whereof the aim is to compare our constitution as it stood and worked in 1884 with the constitution as it now stands in 1914”. Dicey concluded, of course, that law and opinion in the early 20th century had seen wholesale change requiring that he significantly revise his original conception of sovereignty in that Introduction.
Though its 1885 form is scuppered, Dicey’s concept of parliamentary sovereignty persists as a sound theory in UK constitutional law just like the hull of a scuppered vessel like The Thames no doubt remains displaying its essential form (Jennings did, after all, confirm Dicey’s essential notion).
Equally it should be borne in mind that ideological perspective impacts upon conceptions such as sovereignty. In his Preface to the 9th edition of A.V. Dicey’s Introduction to the Study of the Law of the Constitution, constitutional expert Professor E.C.S. Wade says, “It is questionable whether any writer upon the subject of the constitution can entirely eliminate his own political predilections.” Dicey’s main critic, Sir Ivor Jennings, identifies Dicey’s politics as those of a Palmerstonian Whig.[6] Ideological predilections, therefore, can impact on politically-charged conceptions such as sovereignty and free movement of workers. A strictly legal focus can assist in understanding the proper position of such notions in law.
So, bearing in mind that sovereignty is a concept that can be understood as a fluid concept, subject to change and ideological perspective like Heraclitus’ river, the accession of the UK to the EEC on 1st January 1973 under the European Community Act of 1972, represents a significant moment in the changing nature of UK sovereignty. Indeed something of a tidal surge. Prior to the formal accession of the UK to the EEC on the 1st January 1973, the EEC had built up a significant body of law. This is known as the acquis communitaire.
At the moment of UK accession the acquis communitaire was imbibed into the mainstream of UK law. Landmark CJEU case law such as Van Gen den Loos v Nederlandse Administratie der Belastingen [1963] ECR 1, which created the principle of direct effect in EEC/EU law, and Costa v ENEL [1964] ECR 585, unequivocally declaring the supremacy of EEC/EU law, drifted into UK law on the 1st January 1973 on a current that carried the acquis communitaire with it.
In HP Bulmer ltd. & another v. J Bollinger SA & others [1974] 2 All ER 1226, Lord Denning said: “[W]hen we come to matters with a European element, the treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the treaty is henceforward to be part of our law. It is equal in force to any statute. ” Lord Neuberger recently noted[7] that Lord Denning subsequently, ‘warmed to warmed to his theme, observing that:
“[T]he flowing tide of Community law is coming in fast. It has not stopped at high-water mark. It has broken the dykes and the banks. It has submerged the surrounding land. So much so that we have to learn to become amphibious if we wish to keep our heads above water.”[8]
Thus Dicey’s notion of sovereignty was significantly dissolved within the context of these fresh EEC/EU waters.
What Lord Denning described as an ‘incoming tide’ of EEC/EU law reached a high tide mark in R v. Secretary of State for Transport, ex parte Factortame ltd (No2) [1991] 1 AC 603 (HL) when a case concerning domestic maritime legislation saw a Spanish fishing vessel cast a shadow down the Thames that reached Westminster.[9] In Factortame , UK legislation, the Merchant Shipping Act 1988, was successfully challenged on the ground that its provisions violated aspects of the EEC Treaty (now found in TFEU Arts. 26 and 46). This conflicted with Dicey’s legal view of sovereignty that, ‘no person or body could override or set aside the legislation of parliament’.
However in the HS2 case in January 2014,[10] the UK Supreme Court began to erect something like the Thames Barrier to moderate the ‘tide of EU law’ by providing a judicial bulwark (albeit largely obiter) around fundamental constitutional principles.[11] Lord Reed says of HS2: “This seems to me to be the court’s most significant decision on EU law, and arguably on constitutional law”.[12]
It is a paradox that the quiet authority of the UK Supreme Court in HS2 was addressing the concerns relating to sovereignty that, in no small measure, contributed to a referendum result that moves the UK towards ending its EU membership. (That is compounded by the fact that the rights of free movement under the European Economic Area (EEA), that essentially mirror EU free movement rights for persons, are something a post-EU UK has aspired to).
Yet the notion of EU law dissolving sovereignty can be considered from a different, more constructive, perspective which views the impact of EU law as akin to the fertility brought to alluvial land as a result of flooding. Lord Neuberger thinks so noting:
‘Despite the fact that Lord Denning was one of the three or four most influential common law judges of the 20th century, it seems to me that that notion, like his memorable image of the common law being submerged by an inexorable tide of European law, rests, I suggest, on a misunderstanding… the common law is the product of many different sources, and all the better for that. It has always developed as a synthesis, or, if you prefer, as a discriminating magpie, picking up and often improving the best from other legal systems. The development of the common law, in the light of its recent reception of EU and European Convention law is therefore entirely in keeping with its historical traditions.”
Moreover any conception of sovereignty as a notion importing ideas of traditional autonomy is questionable in a modern context. David Cameron made this point from the Despatch Box during the EU Referendum debates. For who can really say, “none to dispute sovereignty with me lord of the manor”?[13]
[1] This phrase is borrowed from Lord Denning in HP Bulmer ltd. & another v. J Bollinger SA & others [1974] 2 All ER 1226.
[2] See, for example, the debate on the EU Council meeting in the House of Commons on February 2016: https://hansard.parliament.uk/Commons/2016-02-22/debates/16022210000001/EuropeanCouncil?highlight=sovereignty#contribution-16022230000025 (Accessed, Sunday, 19th June 2016).
[3] Heraclitus’ aphorism is considered in BBC Radio 4’s In Our Time broadcast Thursday, 8th December, 2011 and is read in the original Greek at 7.45 mins in to the discussion: http://www.bbc.co.uk/programmes/b017x3p4
[4] F.A. Hayek pinpoints the moment as occurring in 1766 discussing, with concern, his view that democracy inevitably progresses to a point where, “sooner or later it [i.e. democracy] comes to claim the right to settle any particular question in whatever manner a majority agrees upon. This is what happened to the Athenian democracy at the end of the fifth century… In modern times, a similar development started when the British Parliament claimed sovereign, that is unlimited powers, and in 1766 explicitly rejected the idea that in its particular decisions it was bound to observe any general rules not of its own making”.
[5] A.V. Dicy (1885) Introduction to the Study of the Law of the Constitution, Chapter 1.
[6] Sir Ivor Jennings (1959) The Law and the Constitution, p.56 f.1.
[7] Has the identity of the English Common Law been eroded by EU Laws and the European Convention On Human Rights?1 Faculty of Law, National University of Singapore, Lord Neuberger, 18 August 2016.
[8] Shields v E Coomes (Holdings) Ltd [1978] 1 WLR 1408 at p 1416.
[9] The extent to which Dicey’s concept of parliamentary sovereignty is negated by Factortame is, however, open to debate (Goldsworthy, Parliamentary Sovereignty, 2010, pp.287-8).
[10] R (on the application of HS2 Action Alliance Limited) v Secretary of State for Transport [2014] UKSC 3. See also HMRC v Aimia Coalition Loyalty UK Limited (No.2) [2013] UKSC 42 where a CJEU preliminary ruling was, for the first time, challenged by the UKSC.
[11] There is a curious reverberation in that the HS2 project is in jeopardy as a result of the EU referendum result.
[12] The Sir Thomas More lecture for 2014, EU law and the Supreme Court, 12 November 2014.
[13] Daniel Defoe, Robinson Crusoe, Ch.9.
