UKIP Uncovered
What motivates the leaders of the United Kingdom Independence Party?

Thursday, December 30, 2004 

Would Mike Nattrass understand this exchange?

The following exchanges on the Contstitution in the European Scrutiny Committee took place on 8th December 2004:

Q113 Mr Cash: I could offer you a number of examples and most of them are pretty authoritarian, but that is a problem which I think this European Constitution and the whole of this political system which is being created represents. I very much agree with the sentiment behind what Mr Bacon said. The question which I am going to ask on this issue goes to the heart of what you said in your leading text book, which is that the ECJ is generally perceived to have pursued a vigorous policy of legal integration over the years and in particular in the earlier decades of the Community's history, and the role and primary concern of the Court is to enhance the effectiveness of Community law and to promote its integration into national legal systems. I would say that is a cuckoo in the nest and it goes back to my earlier question about the disapplication of national laws where they are expressly and unambiguously inconsistent with the Treaties, the rulings of the Court and the laws of the acquis, in other words who rules, is it the voters - to go back to your point about basic legal rules and the need to interact with the legislature - or, as I would prefer, basic constitutional principles which are based upon the democratic decision-making of the voters in a general election irrespective of what the European Community prescribes. In a general election if voters of a particular country decide that they want to have laws which are expressly inconsistent provisions of the Constitution or indeed the existing Treaties, the question is who rules? I say the voters, but you and the establishment of the European system will say that ultimately, as the Constitution prescribes, it has to be the European Court of Justice. I do not see that as a democratic system at all, do you?

Q114 Professor De Búrca: That would not be my view; in a sense my view is beside the point. My view would be that the European Court of Justice within its particular institutional powers and configuration has seen that as its role. It has seen its role being to promote the effectiveness of EC law. In my view a court in Britain has the right to decide for itself whether in the court's own interpretation of its constitutional system and where its position is within that and the way in which the constitution or the EC Treaties have been given effect by British constitutional law to decide within that whether they are under a duty to disapply an Act of Parliament or to give effect to an Act of Parliament which expressly contradicts EU law. In my view, I did not answer the question on primacy earlier, the provision on primacy does not change the existing situation which is that national constitutional courts, without anyone saying they violated EC law, simply pose a challenge to the Court of Justice in saying: "Our loyalty is to our Constitution and in so far as our Constitution mandates we are a part of the European system then we will give effect to EC laws" but if there is a clash and the clash is in an area over which we have jurisdiction within our jurisdictional system, then Kompetenz-Kompetenz does not remain with the European Court of Justice. That question has never been expressly addressed by British courts and in my view it is an open question how they might deal with it.

Q115 Mr Cash: That is the danger, and it is because of what Jack Straw has conceded to me on 9 September, for your record, with respect to the question of the Article 1(5) point, who rules okay, the Constitution or the Constitution of the Member States including the enacting of legislation by our Parliament. Yes, it is possible that Parliament could over-ride that at the moment, but the real question - and you described it in a sense as an open question just now - is that the current convention, which is that the European Court will not disapply legislation by voluntary advocation by an enactment such as the Constitution, could be construed as a signal to the European Court that it itself could disapply because the individual Member State - and it could be the German Constitution for example - has effectively been over-ridden by Article 1(5) and I can see them taking that view, can you not?

Professor De Búrca: I cannot because the provisions for the Constitution are very explicit about the powers of the Court and they do not include the power to set aside a national law. They have very explicit powers about setting aside Union laws and reviewing Union laws. Their only power is either to declare a state in violation of the Treaty under the enforcement procedure brought by the Commission - which does not affect national law - or to send a reference back to a national court. Ultimately, it remains with the national court and the national parliament to decide what you do. The European Court of Justice can do nothing, and I do not think the Constitution will change that at all, if a state decides it wants to expressly countermand, violate or challenge a provision of EU law.

Professor Eeckhout: Could I add to something to that. If you look at things from a very basic perspective, the Constitutional Treaty, like any other Treaty, is a form of international law which under international law is binding on the states which have signed it. What we have achieved in the context of European Union law is simply a better way of ensuring that every Member State does comply with the international obligations to which it has committed itself by virtue of the fact that the European Court of Justice has confirmed this principle and the national courts have accepted that in general is a principle which they will uphold. Again, the Constitution has very much agreed that it does not in any way change that. It is a matter for the unwritten Constitution of the United Kingdom and for the courts interpreting that Constitution to decide precisely what effect and under what circumstances European law does that.


More on these fascinating and critically important exchanges may be read from this link. My thanks to Anne Palmer for directing me to this record.

posted by Martin | 7:49 AM
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