I agree that this is a disgraceful decision. I’m not sure if you’re right about the delay meaning that it won’t happen, however. 2011 is the last date it can be implemented by law, but my understanding is that the law says it absolutely has to be implemented then. I’m not sure any government can refuse to do that, because Britain has signed agreements that tie us into this and courts have made rulings on it – could the Tories really just say “we’re not doing this”; would they even have the authority to do it just by passing a quick bill?

It makes a difference to just how bad this decision is whether the result of it is it will be delayed for 2 years, or never done.

The British Labour Market is yet another car crash caused by the kind of laissez faire dogma which drives ludicrous decisions like these.

30 years of job market so-called liberalisation and our unemployment rate is not that much better than other European countries! And we have the huge spectre of job insecurity with all the social damage that does to go with it too!

Some legacy.

could the Tories really just say “we’re not doing this”; would they even have the authority to do it just by passing a quick bill?

Legally? Of course they can. Legally, Parliament is sovereign, and domestic law takes precedence over international treaties. As a practical matter, it would cause a huge fight with the EU. But this may be a feature not a bug:

Given that the Lisbon Treaty will almost certainly be ratified and in force by the election, this would present the Tories with a possible route for their slightly nebulous ‘not letting matters rest’. Given a pretext (I think that the swingeing regulations favoured by a lot of MEPs that will move the hedge fund industry offshore look like a possible flashpoint) a Tory Govt could indeed announce that they will not implement this or anothe rpiece of European legislation, will pass a Bill in Parliament outlining which laws/powers they intend to be repatriated and then have a referendum on whether the British publc support this position.

After that, it’s a stand-off, but the idea that legally the Government could be prevented from passing bills in conflict with European law is ripe for a challenge.

Am I the only one who resents being told I’m not allowed to work more than 48 hours a week even if I choose to?

You’re not told that; there’s an opt-out. Anything else is between you and your employer. However, workers have the power to decide not to continue to opt-out at an agreed period of notice and employers cannot punish them for doing so. Some large employers have decided that as employees have this individual power, they would rather employ no-one for longer than 48 hours a week, so they don’t have to rejig shift schedules all the time. Again, that is a decision they have taken rather than one that is taken for them.

Of course, whether the opt-out is actually voluntary given the disproportionate power employers have is a different issue. I’m just stating the factual position.

‘ at the same time, preventing full-time staff being undercut by cheap agency recruits.’

Nice timing too, with agency recruits about to be drafted in to undermine the postal workers.

Still, ‘Labour betrays workers’ isn’t news – where’ve you been the last 12 years?

Nobody should be suprised at this. The Labour Party are little more than a greedy bunch of lazy, useless bastards. The likes of Brown, Milliband, Balls an co make me want to vomit. I despise the Labour Party and its membership for this and other attacks. I used to accept that they were better than the Tories, but that is simply not true.

The Labour MPs are quite happy for bankers to recieve tip top wages and massive expense accounts, but are unwilling to protect the most vunerable in the work force. They cannot understand why they are losing in the polls? Why aren’t they squealing from the rafters on this issue?

The thing is, when milions of people lose their jobs, terms and conditions that resentment will be converted into votes for the likes of the BNP, If I was Nick Griffin, I would be highlighting this on Question Time and let Straw bluster away.

I wouldn’t piss on a Labour Party member either.

3 – “Legally, Parliament is sovereign, and domestic law takes precedence over international treaties. As a practical matter, it would cause a huge fight with the EU.”

I believe that this is an EU Directive and that, as such, under article 249 of the Treaty establishing the European Communtiy:

“A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.”

So, I’m not certain that a Tory government could “scrap” the proposal and still remain in the E.U.

But I think it is disgraceful that Labour has, once again, sided with employers, against workers, under the pretence of “keep[ing] the labour market flexible” and “slow[ing] the increase in unemployment” – in other words, fiddling the figures and making sure that employees are shafted.

@1, @8

Well, by the same token, David Cameron’s pledge to scrap the Human Rights Act would probably put the future UK government in collision course with the EU, as the HRA was created to implement the European Convention on Human Rights.
That doesn’t mean it won’t happen.

8 – quite. It would cause a fight with the EU. However, there are a few precedents for EU member states selectively refusing to enforce EU directives. French usually. Since the EU has no really effective enforcement method, it ends up in a protracted stand-off (such as British beef) and an eventual compromise.

Legally speaking, however, there is (almost) no question that Parliamentary legislation overrides EU legislation – provided that the Government wants to fight about it.

Again proving, if anyone needed it that NuLab are right of Tories; Tories and do not give a flying fuck what happens to the workers of the UK.

Despicable that “Labour” party MPs are Thatcherites.

@3 – “Legally, Parliament is sovereign, and domestic law takes precedence over international treaties.”

That’s not quite how it works with EU law though. Once the date for implementation has passed and a Directive has not been implemented, certain parts of the Directive (which are sufficiently clear etc) can be directly enforced against the Government in UK courts, whatever Parliament says. Moreover under limited circumstances you can get compensation from the Government for failure to implement. It’s all a bit messy, but the point is that there *are* remedies if the Government took the rather foolish step of simply refusing to implement.

@9 – “Well, by the same token, David Cameron’s pledge to scrap the Human Rights Act would probably put the future UK government in collision course with the EU, as the HRA was created to implement the European Convention on Human Rights. That doesn’t mean it won’t happen.”

Possibly, although the ECHR is nothing to do with the EU. Instead it was passed and is maintained by the Council of Europe, a wholly different body, and covers many non-EU states.

#11 It’s not proof that New Labour are to the right of the Tories, unless the Tories are saying they would implement this at some stage in the next 2 years. It’s one thing claiming that there is insufficient distance between Labour and the Tories, and another to claim that New Labour are to the right of the Tories, which is a rather silly claim.

Once the date for implementation has passed and a Directive has not been implemented, certain parts of the Directive (which are sufficiently clear etc) can be directly enforced against the Government in UK courts, whatever Parliament says.

The point I was making is that if the Government decided to fight this (as part of a wider campaign to repatriate powers etc), and it passed an Act specifically in contradiction of the Directive there would then be an almighty legal barney.

The courts have fudged the question of the sovereignty of Parliament by referring everything back to the ECA (ie: whatever the rhetoric of Direct Effect, the technical means by which all EU legislation, whether regulations or directives is enacted in the UK is through the ECA). Since Governments have never yet deliberately legislated against EU legislation it’s never been challenged (except on the very narrow grounds of judicial review by people like William Rees Mogg). If one did, it would be very hard in light of Common Law precedent for the Courts to argue that the UK has lost its legal right to legislate in the manner it sees fit.

The courts’ job is to interpret the law: not to make it. If Parliament passes a law that says, on its face, that it shall take precedence over any contradictory European legislation, and amends previous UK law to that effect as well, that would almost certainly suffice.

It probably won’t happen (though there’s now a real possibility that it will), but the mechanism for surrendering the UK’s legal sovereignty simply isn’t there. Parliament’s can’t bind their successors; domestic law overrides international law; new legislation overrides old. Them’s the rules, and short of a revolution they can’t really be changed.

9 – on the HRA, it would be perfectly in order to scrap it altogether. There is no requirement for there to be specific legislation enacting the ECHR – only that its values be reflected in the law of the signatory countries. No problems there – we weren’t in breach before 1998, and we wouldn’t be if we were to abolish the HRA now.

The problem with the HRA, of course, is that it takes a European civic law code, and superimposes it onto a common law system. It provides that the judiciary determine the law, rather than interpret it. It knocks a coach and horses through the British constitution.

But hey, it sends the right message, and we all know that that’s what legislation is for these days.

@14 – “The courts have fudged the question of the sovereignty of Parliament by referring everything back to the ECA”

Uh, you mean the ECJ?

“Since Governments have never yet deliberately legislated against EU legislation it’s never been challenged (except on the very narrow grounds of judicial review by people like William Rees Mogg). If one did, it would be very hard in light of Common Law precedent for the Courts to argue that the UK has lost its legal right to legislate in the manner it sees fit.”

Uh, what? Sorry, but your information is about 20 years out of date. Ever heard of the Factortame litigation? It’s on Wikipedia and all… The Law Lords in 1990 stated that the European Communities Act had the effect of overriding even later Acts contrary to EU legislation. The Merchant Shipping Act 1988 was one such Act, and was overturned by the Lords. In effect, they said that the ECA had become a constitutional fact and that Parliament could not legislate contrary to EC law.

Now this is not necessarily irreversible, in that Parliament could still repeal the ECA. But short of that revolutionary move, it is clear that it cannot legislate as it likes.

@15 – “[The HRA] provides that the judiciary determine the law, rather than interpret it. It knocks a coach and horses through the British constitution.”

Nope, simply untrue. It imports the Convention and the precedent of the European Court of Human Rights into UK law. The judiciary are still interpreting the law, but the law comes from a different source. In fact, if you want to complain about them making up law, the better target for your criticism would be home grown common law principles!

“But hey, it sends the right message, and we all know that that’s what legislation is for these days.”

Again, this is amazingly ignorant. Pre-HRA, in order to complain that the UK had breached an obligation under the ECHR (which it did sometimes), you had to take the long route to Strasbourg to complain in front of the European Court of Human Rights. The HRA meant that these rights could be upheld in national courts, (albeit in a more limited fashion the EC law) giving a more effective remedy. This is hardly a matter of ’sending the right message’!

Seriously, if you want to complain about the ECHR and HRA then fine, but get your facts straight!

16 – no the ECA. European Communities Act 1972. It is the ECA that acts as the portal through which all EU legislation takes effect in the UK. The courts have fudged the issue of judicial supremacy by deciding that all European law takes effect through a British Act of Parliament, and that there is therefore no conflict between the sovereignty of Parliament and the supremacy of the ECJ in specific areas.

Factortame (which, astonishingly, I did get around to studying for my law degree) is actually not terribly relevant to the scenario I sketched out above. Factortame dealt with a situation where there was no intent to breach EC law. It was an accidental breach, and remedied through using the judicial figleaf of the ECA. In my scenario, the Government explicitly breaches EC law, on purpose, and via a statute that sets that out on its face. Shall I say this again?

“Since Governments have never yet deliberately legislated against EU legislation it’s never been challenged (except on the very narrow grounds of judicial review by people like William Rees Mogg). If one did, it would be very hard in light of Common Law precedent for the Courts to argue that the UK has lost its legal right to legislate in the manner it sees fit.”

Yup. An accurate summary of the current state of UK constitutional law. Factortame simply isn’t relevant to that paragraph.

If you want some judicial support for this view (and I suspect they’re on Wikipedia as well), you could try case of Macarthys v Smith, where Denning stated that an explicit repudiation of EU law must be followed by the courts. Or the more recent Thoburn v Sunderland case, where the explicit right of the UK Parliament to legislate in breach of EU law was also upheld (though it also introduces the rather odd idea of ‘constitutional acts’).

17 – wrt the HRA, mine was a slapdash comment and I apologise. The point remains that, by importing a civil cide style piece of legislation into a common law jurisdiction, the HRA has caused significant complications to the British constitution. The judiciary’s role in examining legislation for its compliance with the HRA puts them in the position of a European Constitutional Court – which is not a position the judiciary has previously had in the UK. There are better ways of incorporating the ECHR into British law.

@18 – “no the ECA. European Communities Act 1972″

Fair enough. My bad, I misunderstood. Apologies for assuming you had no legal knowledge – your mash-up of the HRA convinced me of that.

“Factortame dealt with a situation where there was no intent to breach EC law.”

Uh huh, you believe that. More importantly, I’m amazed you think the courts would make a distinction between intentional and unintentional non-compliance. If you’re talking about an explicit repeal of the ECA then yes, maybe. But that’s far grander than anything we’re considering here.

“Macarthys v Smith, where Denning stated that an explicit repudiation of EU law must be followed by the courts.”

Okay, an obiter comment by Lord Denning of all people, in the Court of Appeal.

“Thoburn v Sunderland”

Where it was made clear that constitutional statutes could be explicitly, but not impliedly, repealed.

So yes, the ECA could be repealed. But short of that, I don’t see where you’re coming from: The courts would clearly side with the EU.

“The point remains that, by importing a civil cide style piece of legislation into a common law jurisdiction, the HRA has caused significant complications to the British constitution. The judiciary’s role in examining legislation for its compliance with the HRA puts them in the position of a European Constitutional Court – which is not a position the judiciary has previously had in the UK.”

Complications are not necessarily worse. Unless you have a problem with the ECHR rights themselves, I can’t see how incorporation has been anything but a good thing. And just because it’s a new thing for the courts, it doesn’t make it a bad thing. Surely if Thatcher and Blair have shown us anything, it’s that checks and balances are a good thing?

19 – that was the stated reasoning of the House of Lords. They were desperate not to get themselves in a position where they were arguing that the Heath Government had tied the hands of its successors – because that’s constitutionally impossible.

So yes, the ECA could be repealed. But short of that, I don’t see where you’re coming from: The courts would clearly side with the EU

And that’s where we disagree. I think, and there’s a fairly hefty weight of jurisprudential opinion that also thinks, that in circumstances where a Government enacted legislation with the explicit intention of amending EU law, it would be a very ‘brave’ decision by the Supreme Court to rule it impossible. It would mean breaching every constitutional tenet of our system of Government.

What the courts might do is state that the new act would be in breach of EU law. But since that would be the point of it, it wouldn’t get anyone very far.

There’s a reason I’m fiddling around with 70s obiter judgements, and you’re sticking to Factortame, and reading things into it: the courts and the Government have been desperate to avoid having this question answered. Because it is philosophically incompatible for Parliament to be sovereign and for the ECJ to have supremacy – they can’t both be true.

@20 – “I think, and there’s a fairly hefty weight of jurisprudential opinion that also thinks, that in circumstances where a Government enacted legislation with the explicit intention of amending EU law, it would be a very ‘brave’ decision by the Supreme Court to rule it impossible. It would mean breaching every constitutional tenet of our system of Government.”

What I’m curious about is exactly what you mean by ‘legislation with the explicit intention of amending EU law’. Do you mean that the text of the Act says ‘Ignoring any EU Directive…’ etc or do you mean an explicit repeal in a Schedule? If the latter, surely it would have to be of the ECA itself. If the former, as well as being odd, I don’t see how it would work. It could still only be an implied repeal (since after all, the UK can’t repeal actual Directives!) and its been stated that you can’t do that to the ECA…

I’m still curious why you’re relying on Thoburn, since as far as I can tell it supports me on this. I don’t have access to the judgement though so I may be misremembering.

To everyone else on this thread: Very sorry I’ve derailed it!

I’m enjoying the legal discussion, keep it up! I think I’m actually learning something rather than just watching a discussion on whether the BNP is left or right wing again…

What I’m curious about is exactly what you mean by ‘legislation with the explicit intention of amending EU law’. Do you mean that the text of the Act says ‘Ignoring any EU Directive…’ etc or do you mean an explicit repeal in a Schedule? If the latter, surely it would have to be of the ECA itself. If the former, as well as being odd, I don’t see how it would work. It could still only be an implied repeal (since after all, the UK can’t repeal actual Directives!) and its been stated that you can’t do that to the ECA…

It hasn’t you know. Factortame (deliberately) never ruled on the point. All the constitutional precedents are to the effect that any contradiction between national and EC/EU law must be accidental, and can thus either be smoothed over by harmonious construction, or if in direct contradiction, domestic law can be overruled altogether. The question as to whether an Act that explicitly contradicted EC law, as its deliberate aim, could be overturned by the domestic courts has only ever been addressed in obiter – by Denning, who is admittedly hardly in tune with modern jurisprudence…

As to Thoburn, it’s an odd one. It answers the constitutional problem of implied repeal by inventing constitutional statutes, but does so exclusively in the philosophical area of English law – ie: the whole legal basis for EU legal supremacy is derived from English law and English statute. The statute that underpins this is not susceptible to implied repeal. But it is susceptible to explicit repeal or amendment. The quote that everyone uses in this context is this one:

there is nothing in the [European Communities Act] which allows the Court of Justice, or any other institutions of the EU, to touch or qualify the conditions of Parliament’s legislative supremacy in the United Kingdom. Not because the legislature chose not to allow it; because by our law it could not allow it.

I think, and with apologies to everyone else, that we could probably go round and round the houses on this one. One of the key considerations in the jurisprudence has been that no one really believes that any British Government would really go to the mattresses over the concept of Diceyan Parliamentary sovereignty – the political cost would be too high. But the election of a strongly eurosceptic party, in the aftermath of the Lisbon Treaty, with a potential President Blair, and a proposed new law from the EP that would destroy (or even cripple) the hedge fund industry in London…?

Arguably, your belief that, contra Laws LJ, Parliament has already lost its legislative sovereignty is the more extreme – and there’s certainly no explicit precedent to cite.

@23 – “It hasn’t you know. Factortame (deliberately) never ruled on the point.”

But later on you accept that Thoburn *did* rule on the point.

“Arguably, your belief that, contra Laws LJ, Parliament has already lost its legislative sovereignty is the more extreme – and there’s certainly no explicit precedent to cite.”

I don’t actually think this – I don’t think that having to explicitly repeal certain statutes constitutes losing legislative sovereignty. I just think that Thoburn states the orthodox position now: That the ECA is not subject to implied repeal. It seems clear to me that this is true even if a new statute appears to be a deliberate contradiction, unless it explicitly repeals part of the ECA. Again, what would such an explicit contradiction look like?

24 – Implied repeal is a separate issue though, and that’s the entire point. Factortame implied, and Thoburn affirmed, that the ECA is not susceptible to implied repeal. An explicit amendment (‘for the purposes of this Act, EC law shall not be considered to include…’) of the ECA would not be an implied repeal.

The law so far has held the line. No-one wants a showdown, and no-one wants to think through the implications if EU law really is both sovereign and not subject to UK repeal/amendment. Because the implications are that membership of the EU breaches the constitutional position on parl’y sovereignty, and on the ability of parlts to bind successors. Since these are the two pillars on which our version of the rule of law depends, there are rather deep implications, and it’s been in nobody’s interest to examine them.

I love Europe.

But trade. Just trade.

Not governance.

When it comes to the laws which govern me, I prefer my own government, of any colour, to a small group of minor politicians in Belgium, whose interest in my welfare is always divided by twenty six.

Sorry.

What an informative thread. Thanks.