An examination of several topics, including: law, subsidiarity, the European Parliament, the draft withdrawal agreement and the British government’s response. The post has many links, to more details and to supporting evidence.
As another example of what we’re witnessing (see Summertime), Kate Hoey (Labour eurosceptic MP) asked the Speaker of the UK Parliament whether the EU moving the end date of Article 50 overruled Parliament’s Statutory Instrument which fixed 29th March as the leaving date. The EU order takes precedence. We doubt many people in the UK were aware of this, we don’t think it was debated in Parliament and it hasn’t featured in the news.
‘Euro-law’ takes precedence in all areas where subsidiarity hasn’t been authorised – which means nearly all areas. ,  That is, to us, the main beef against the Withdrawal Agreement (WA), it confirms this status indefinitely, in practice. We are astonished that so little fuss is made about the dominance of Euro-law over British law, particularly after this:
“No longer is European law an incoming tide flowing up the estuaries of England. It is now like a tidal wave bringing down our sea walls and flowing inland over our fields and houses – to the dismay of all.” Lord Denning in 1974 (see Practising to Deceive).
This is what the UK Parliament has to say about its “role in Europe” (https://www.parliament.uk/about/how/role/relations-with-other-institutions/europe/):
- Scrutinising EU draft legislation and other EU documents.
- Changing UK law to reflect agreed EU legislation and treaties.
- Holding the government to account on its EU policies and negotiating positions in the EU institutions.
So (2nd point) Parliament’s role is not to create or modify legislation, having in mind the benefit of their voters and other UK citizens, it is to follow slavishly instructions from the ECJ on behalf of the EU. We note that “Holding the government to account” means little in this context and “Scrutinising” means nothing at all.
‘The UK in a Changing Europe’, an NGO, has this to say on the subject (https://ukandeu.ac.uk/fact-figures/does-eu-law-take-precedence-over-uk-law/):
“In an important ruling in 1964, the Court said that the states had agreed to limit their sovereign rights in the areas covered by the treaty and could not adopt national laws that were incompatible with European law.”
In short, the “tidal wave” is self-inflicted; successive UK governments and parliaments have allowed EU law to creep across and swamp every precedent established over many generations.
If the Withdrawal Agreement is ever passed by the UK Parliament in its present form (and the EU has put it beyond doubt that this Agreement is final and will not be changed) then the Joint Committee it establishes will continue this subjection:
The decisions adopted by the Joint Committee shall be binding on the Union and the United Kingdom, and the Union and the United Kingdom shall implement those decisions. They shall have the same legal effect as this Agreement.
It is clear from the context that the Joint Committee will continue to subject UK law to its overriding scrutiny and will sit enthroned between us and them. From Article 169:
Any communication or notification between the Union and the United Kingdom provided for in this Title shall be made within the Joint Committee.
Until she changed her mind (if she did) and decided to promote the withdrawal agreement, this is what Theresa May had to say on this matter (from the Government’s White Paper, published in August 2018):
The arrangements would include … accommodating through a joint reference procedure the role of the Court of Justice of the European Union as the interpreter of EU rules, but founded on the principle that the court of one party cannot resolve disputes between the two.
The WA confirms that the CJEU will be entitled to resolve disputes between the EU and an ‘independent’ UK. Here is what we said in our commentary on this Chequers White Paper (CWP) :
“The EU has made it clear, beyond any doubt, that it expects everything to be tied up in law and so subject to the remit of the European Court of Justice (ECJ). Trust cannot be enshrined in law and we expect it to be rejected as the basis of any withdrawal agreement. A ‘red line’ for the EU is that the ECJ should have jurisdiction over all EU laws and agreements; a red line for the UK (unless it goes pink in subsequent ‘negotiations’) is that the UK should be free of the dominance of the ECJ over its own courts.”
The UK’s ‘red line’ didn’t merely go pink, it disappeared altogether and the dominance of EU law, and the ECJ, is enshrined in the WA. Should any doubt remain, the CWP itself clears it up:
“Finally, if an agreement had been updated to reflect a rule change, this would become a binding obligation on both parties in international law. The agreed rule changes would also need to be given effect in UK law through domestic legislation.”
Agreeing to this sort of thing is how the UK got itself (i.e. us) subject to a foreign power. The CWP acknowledges that such an agreement (e.g. the WA) would bind the UK in international as well as EU law:
“The UK Parliament would scrutinise this legislation in accordance with normal legislative procedure, respecting the principle that a sovereign Parliament has complete control over domestic law. This means that the UK Parliament could decide not to give effect to the change in domestic law, but this would be in the knowledge that it would breach the UK’s international obligations, and the EU could raise a dispute and ultimately impose non-compliance measures.”
The Government surely doesn’t believe that scrutinising legislation respects any principle, let alone gives a (notionally) sovereign Parliament “complete control over domestic law”. How did she persuade her cabinet to agree to this? And why did they?
Interestingly, in response to the WA, the UK Parliament has recently taken a, sort-of, grip on normal legislative procedures and taken them out of the hands of the Government, with spectacularly messy results.
But she wants her Parliament to sign up to a legal regime the only escape from which is to break its promise to obey.
For more details on this topic see:
 Subsidiarity and Competence
 More is Less: Subsidiarity-1