Clarke in 2003: Supremacy Act “fundamentally incompatible” with EU membership

A 2003 report by Ken Clarke argued that a Supremacy Act, similar to the UK Sovereignty Act proposed today, would be "fundamentally incompatible" with EU membership.

A 2003 report by Ken Clarke argued that a Supremacy Act, similar to the UK Sovereignty Act proposed today by David Cameron, would be “fundamentally incompatible” with EU membership and a “recipe for anarchy”.

The report (no longer on the Internet but available for download here), published by the Tory Europe Network, argued that:

“Throughout our eighteen years in Government, we always accepted that the European Union could not possibly work without its law taking priority over national laws within its own competence. There has never been any serious doubt that for us to purport to reverse this principle by an Act of Parliament would be fundamentally incompatible with our continued membership of the Union, and would be taken as an immediate signal of our withdrawal from full membership.

“Ideas such as a ‘supremacy act’ asserting the superiority of British law or giving the British courts the power to overrule judgements of the European Court of Justice undermine one of the fundamentals of the European Union – the universal application of EU law which actually needs to be strengthened in some areas to ensure that every State obeys the rules.

“Without a universally applicable and enforceable body of European law, the European single market simply could not function as it does. British businesses can treat the other [members] – as part of their ‘home market’ safe in the knowledge that common standards and rules apply. And of course an attempt to end the supremacy of EU law in areas where it does not suit us implies that we would be happy to see other EU countries do the same. But this would mean that areas where even anti-Europeans agree that common legal standards benefit us could also be under threat. It is a recipe for anarchy.”

David Cameron said today:

“So as well as making sure that further power cannot be handed to the EU without a referendum, we will also introduce a new law, in the form of a United Kingdom Sovereignty Bill, to make it clear that ultimate authority stays in this country, in our Parliament.”

A spokesman for Ken Clarke told Left Foot Forward, “The United Kingdom Sovereignty Bill promised today by David Cameron does not do any of the things that Ken Clarke was criticising in his 2003 paper. As David has made clear, the Bill would not mean striking down individual items of EU legislation but would provide ultimate constitutional safeguards against any attempts by EU judges to erode our sovereignty. Ken fully supports this and the series of measures announced today for which the Conservative Party will seek a mandate at the next general election. “

16 Responses to “Clarke in 2003: Supremacy Act “fundamentally incompatible” with EU membership”

  1. policy analyst

    RT @nextleft Ken Clarke 2003 #sovereignty law "incompatible” with #EU membership and a “recipe for anarchy” http://bit.ly/JCVhW

  2. Jessica Asato

    'Supreme – adj. highest in rank or authority' so isn't your Sovereignty Bill just a Supremacy Act Cam? @leftfootfwd http://is.gd/4N8U4

  3. Labour List

    'Supreme – adj. highest in rank or authority' so isn't your Sovereignty Bill just a Supremacy Act Cam? @leftfootfwd http://is.gd/4N8U4

  4. Eurocentric

    RT @npanayotopoulos: RT @nextleft Ken Clarke 2003 #sovreig. law "incompatible” w/ #EU membership + “recipe for anarchy” http://bit.ly/JCVhW

  5. unseen

    Germany asserts that its courts and legislature can overturn or overrule EU laws. It seems to still be a member.

  6. Jon Worth

    Excellent research to dig this up! Well done LFF team…

    @unseen – in theory, yes, in practice it has never been tested at all. The single market without supremacy of EU law doesn’t work.

  7. Sunder Katwala

    Ken Clarke backs Sovereignty Act; he has assurances from Cameron it doesn't do what it pretends to http://bit.ly/JCVhW (@LeftFootFwd)

  8. GuyAitchison

    RT @nextleft: Ken Clarke backs Sovereignty Act; he has assurances from Cameron it doesn't do what it pretends to http://bit.ly/JCVhW

  9. Liam Murray

    You’re either misrepresenting Cameron’s ‘Sovereignty Act’ or misunderstanding it. Jon says:

    “The single market without supremacy of EU law doesn’t work”

    Absolutely – and the Sovereignty act doesn’t question the supremacy of EU law once it’s been drawn up and agreed across 27 members states. All Cameron’s proposal does is force any UK government embarking on that road to seek approval via a referendum.

    Still much to criticise there and questions about whether it’s workable but absolutely nothing in this post or Clarke’s response to today’s announcement which demonstrates a sovereignty act is incompatible with EU membership.

    All of which, ironically enough, makes the sleight of hand in your post title very ‘Daily Mail’…

  10. kris castle

    RT @nextleft: Ken Clarke backs Sovereignty Act; he has assurances from Cameron it doesn't do what it pretends to http://bit.ly/JCVhW

  11. AndrewSparrow

    @wdjstraw has found Ken Clarke quote saying Supremacy Act would be 'fundamentally incompatible' with EU membership http://bit.ly/4cBuqM

  12. Jon Dennis

    RT @AndrewSparrow @wdjstraw has Ken Clarke quote saying Supremacy Act 'fundamentally incompatible' with EU membership http://bit.ly/4cBuqM

  13. willstraw

    Liam,

    Thanks for your comment. The referendum promise was different from his proposed “uk sovereighty act”. This is the text of what Cameron said yesterday:

    “So as well as making sure that further power cannot be handed to the EU without a referendum, we will also introduce a new law, in the form of a United Kingdom Sovereignty Bill, to make it clear that ultimate authority stays in this country, in our Parliament …

    And he went on to say:

    “That will mean limiting the European Court of Justice’s jurisdiction over criminal law to its pre-Lisbon level, and ensuring that only British authorities can initiate criminal investigations in Britain.”

    This sounds very similar to the bogeyman bill that Clarke so feared six years ago:

    “Ideas such as a ‘supremacy act’ asserting the superiority of British law or giving the British courts the power to overrule judgements of the European Court of Justice undermine one of the fundamentals of the European Union”

    And there’s more in the report if you download it (link above).

    All the best,

    Will

  14. Roger

    Well done for finding that Clarke report – no wonder he’s been pulling out of previously scheduled media events to avoid being called on it.

    However I think Unseen and Jon are right – Cameron can pass any law he likes to pander to the Eurosceptics – however we will only break our treaty commitments by taking concrete actions that violate them and I very much doubt a) that he will risk doing so or that b) if he did the relevant EU bodies will do anything much about it.

    Italy for example is in radical breach of several economic commitments it entered into as part of the Eurozone – but as there is no practical prospect of them being able to reduce their budget deficits by anything like the requisite amounts for at least a decade nobody is talking about expelling them.

  15. Roger

    In fact if I read http://www.bloomberg.com/apps/news?pid=20601100&sid=aZm98qFimxBc correctly no fewer than 18 of the EU27 are either currently in breach of the 3% of GDP deficit limit set by the stability pact or will be shortly.

    Whether this constitutes an actual breach of treaty obligations by two-thirds of the EU I’ll leave to someone more expert than me to indicate.

  16. Carl Gardner

    I think the trouble here is that Cameron has been quite vague about what this National Sovereignty Act would do. From what I heard in the speech it would not do the things Ken Clarke rightly objected to in 2003 – although Cameron did imply at one point it would somehow stop judicial activism in the ECJ. I don’t see how it can possibly work to achieve that.

    My understanding is he’s simply trying to replicate the position under the German constitution – which is fine, but then the existing constitutional position is already equivalent to that in Germany.

    It is the UK courts which rule on all law in this country (applying ECJ case law where appropriate, as the German courts do); they have in the past been called on to consider the lawfulness of the UK’s signing up to further EU integration, just as the German courts have. And Parliament can theoretically overrule EU law internally, just as Germany can. The reason neither does in practice (Jon is quite right – Germany hasn’t done so and its Constitutional Court has said it will not do so as long as the EU continues to respect human rights – which is one reason why Germans and others like the Charter) is that each has accepted Treaty obligations to comply with EU law, and to refuse to do so is not politically compatible with EU membership.

    Cameron’s bill would I think, at most, be a “clarification” of the existing position.

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