The relationship between European Union (‘the EU’) law and the municipal law of the United Kingdom (‘the UK’) seems to lend itself to allusions to water. In Bulmer v Bollinger, Lord Denning famously referred to the incoming tide of what is now EU law, observing that ‘[i]t flows into the estuaries and up the rivers. It cannot be held back, Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.’ And the Factortame litigation, too, was all about water, and the right to fish in it: specifically the Treaty based rights of Spanish fishermen not to be subject to discrimination on grounds of nationality when seeking to exercise their free movement rights to trawl for fish in UK waters.

A turning of the tide

The long decade of Factortame litigation—in which the House of Lords unequivocally accepted that national courts in the UK should treat EU law based rights as being of a higher normative level than Acts of Parliament and confirmed that the UK could be liable by UK courts to pay damages to those who suffered loss from Parliament’s enactment of an EU law incompatible statute—might now be seen to represent the high-water mark of the influence of EU law on domestic law. For tides ebb, as well as flow. The complaints of those of a Eurosceptic ilk of the Member States being ‘swamped’ by a tsunami of EU regulation and of businesses drowning in EU rules have been increasingly dominant in our political discourse. Eurocracy is associated with ever growing popular distrust. The binding of Europe into monetary union is now seen as an act of hubris (the Greeks always have a word for it). Even among the Europhiles, ideals and ideas seem to have drained from their grand post-WWII European project. Scripture says: ‘without vision the people perish; but he that keepeth the law, happy is he’. Yet what law is to kept, as the happy certainties of post-sovereign supra-nationalism embodied in une certaine idée de l’Europe no longer command common assent and have become unhappy uncertainties?

Our courts are, of course, not insensible to this shift, this seeming turning of the political tide. Recent judgments of the UK Supreme Court (‘the UKSC’), in particular, have marked an increasing turn inward, as the ‘Continental’ is abandoned for the ‘Insular’, and the primacy of national constitutional fundamentals are re-emphasised over the provisions of international treaties. Thus in Pham v. Home Secretary Lord Mance (joined by Lord Neuberger, Lady Hale and Lord Wilson) warned against the Court of Justice reaching decisions which ‘overstep jurisdictional limits which member states have clearly set at the European Treaty level and which are reflected domestically in their constitutional arrangements’ and affirmed that ‘a domestic court must ultimately decide for itself what is consistent with its own domestic constitutional arrangements, including in the case of the European Communities Act 1972 what jurisdictional limits exist under the European Treaties and on the competence conferred on European institutions including the Court of Justice’, while suggesting that direct confrontation might be avoided if ‘all concerned … act with mutual respect and with caution in areas where member states’ constitutional identity is or may be engaged’ all done in ‘the spirit of co-operation of which both the Bundesverfassungsgericht and this court have previously spoken.’

The constitutional identity of the UK rediscovered

But what precisely is the ‘constitutional identity’ of the UK which the CJEU should be careful not to trespass upon? Classically, the only constitutional certainty which existed in the UK under the Diceyan analysis of the constitution was the sovereignty of the Westminster Parliament – and that has been considered and dealt a seeming death blow in Factortame. What, then, is left within the UK constitution after Factortame?

The full version of this article can be found here, Aidan O’Neill QC – Not Waving But Drowning EU Law Common Law Fundamental Rights and the UK Supreme Court – 11 May 2015. An earlier version of this paper was published in the Cambridge Journal of International Law but has now been updated to include quite a few cases from 2015.

Aidan O’Neill is a QC at the Scottish Bar and Barrister at Law at Matrix Chambers.