David Cameron struggles to repatriate powers from Brussels. Yet Britain can reclaim one sovereign power without negotiation. Other EU members never relinquished the right to say ‘non’, ‘nein’, ‘oxi’ to European law that violates the constitution. Should Britain do the same?
Italy and Germany’s Constitutional Courts first set constitutional limits to EU law in the 1970s. The Luxembourg-based European Court of Justice was not amused. It recently raged against the Spanish Constitutional Court which had the chutzpah to say the European Arrest Warrant might violate due process. 'Rules of national law, even of a constitutional order cannot … undermine the effectiveness of EU law,' thundered the Luxembourg judges.
European judges putting EU law’s effectiveness above liberty will surprise no one in Britain. National judges’ resistance to this illiberal hubris probably will. Czech, Portuguese, Estonian, French, Polish judges insist that, even after the Lisbon Treaty, national constitutions prevail over EU law, raising perhaps the possibility that Europeans might unite against the EU rather than thanks to it. German constitutional judges, among the most forthright, emphasise that 'the political formation of the economic, cultural and living conditions' must be shaped by national democratic institutions. Ever closer union – a nonsensical idea that would ruin marriages let alone inter-state organisations – may be kyboshed already.
Critics dismiss these national courts for never biting. But don’t underestimate barking. Germany’s Constitutional Court accepted EU aid to Greece, but also said – loudly – that Germany and its parliament must agree to it. And domestic courts may go further and even refuse to apply EU law and rulings on constitutional grounds, as Czech judges did.
So what about Britain? Despite British euroscepticism, British courts are usually bystanders in the confrontation between national and European judges. Things may be changing. When Parliament’s approval of HS2 was challenged as contrary to EU law, senior judges defended our constitutional identity. Lords Neuberger and Mance spoke of 'fundamental principles, whether contained in other constitutional instruments or recognised at common law of which Parliament did not either contemplate or authorise the abrogation' by the EU. Lord Reed supported the German judges’ view that European rulings should not call into question national constitutional orders.
Now it is time for Parliament to lead. The British Bill of Rights is where it should begin. The Human Rights Act allowed judges to declare UK legislation incompatible with human rights. Can we justify not extending this power to EU legislation, which derives from less democratic institutions? The British Bill of Rights should give our judges this power and, as now, leave it to Parliament to decide what to do with incompatible legislation.
Some fear uncertainty will result. Hobbes casts a long shadow, and for many a bad final arbiter is better than no final arbiter. Yet, our constitution has a final arbiter: Parliament. We live in a world where different organisations – the European Court of Justice, the European Court of Human Rights, the Security Council and others – claim supremacy.
Britain cannot be free and sovereign if we think we must submit to these claims come what may. But it is also fanciful to think that we must disengage from international institutions to preserve sovereignty. We must instead strengthen our constitutional ability to withstand pressure from the EU and other institutions. And if, contrary to our clear intentions, they adopt rules that threaten our constitutional principles, we must know where we stand. We should be warier of forfeiting those principles than of protracted legal tussles with Luxembourg.
Would the EU prevail anyway? Do not think it a foregone conclusion. The EU might back down rather than confront judges, government and Parliament. Complex legal proceedings tend to be drawn-out affairs: the Government could try to change the law in the meantime and judges elsewhere may follow the UK example.
Politically, giving our courts and Parliament the power to say no to EU law that threatens our constitutional principles is a no brainer. Eurosceptics will welcome it. And would Europhiles argue that Britain alone should renounce sovereign powers that other good Europeans seem only more eager to exercise?
The EU’s power to interfere with our liberty is growing. When this happens, neither courts nor Parliament do much about it. It is a blank cheque with no justification.
Guglielmo Verdirame is Professor of Law at King's College London and a barrister at 20 Essex Street