Just under two thirds (64%) of British citizens want UK law to supersede EU law, a Survation poll conducted at the end of June found.
Yet in January, European Court of Justice Advocate General, Cruz Villalón, responded to a challenge by the German Constitutional Court, that it was an impossible task to preserve the European Union without its laws taking precedence over national law.
This might seem a clear case for the UK leaving the European Union.
The same poll, however, reveals a couple of twists. The majority of those polled – by quite some way – wished to remain in the EU. Furthermore, changing this was not a high priority for many – only 18%. How to explain this?
Primacy of EU law
EU law has enjoyed primacy over national law for more than 50 years. For the majority of its existence this bothered few people. This was because whilst the scope of EU law was wide-ranging and there was a lot of it, very little could be invoked in national courts over national law. The majority were instructions to national officials.
In the first 25 years of British membership just five directives-(the dominant EU legislative instrument) were invoked, 73% of the time, in British courts.
Most people just did not experience the primacy of EU law over national law in their lives.
There are signs this is changing. The corpus of EU law which can be invoked in national courts has expanded in the last ten years and some of the issues which can be invoked have become more politically contentious.
In March this year, the UK Supreme Court expressed outrage that EU law might be used to restrict the withdrawal of British citizenship. It indicated if this were the case, they would refuse to apply it over British law.
Within such a context, believing the EU is a good thing – the sentiment behind continued membership – does not mean its laws should be applied unwaveringly over national law. In cases where two legal systems both do significant things, there may be circumstances where one should triumph and circumstances where the other should triumph.
How to decide when EU law should be disapplied?
This should not be done by bureaucratic writ or academic pronouncement. It is surely a question of democracy.
EU law should be disapplied where Parliament chooses to act against a particular EU law. Or, as the parliamentary political system poorly mediates people’s preference about the EU, where there is a petition of more than 100,000 signatures that an EU law should not be applied. On the basis of this petition, a tribunal may find this EU law is causing more harm to British citizens than good and disapply it.
Safeguards would be required to counter opportunism and xenophobia, and ensure that the interests of other states’ citizens were taken into account. An assessment should, therefore, be made of its impacts on other EU citizens and care taken to minimise these impacts. Citizens from other states should be able to make a case about how they are affected.
Finally, the proposed disapplication should be passed to other national parliaments across the EU for their view. If a sufficient number thought disapplication excessive, or done in bad faith, it should be passed to the heads of government to see if a resolution is possible.
If not, the British law would apply. But the UK would have to accept counter-measures. It would probably rarely come to that. Other national parliaments would have their own laws that they would wish to apply over EU law.
It is unlikely that they would act aggressively knowing this.
Such a change would make the EU less doctrinaire, more sensitive to local concerns and allow it to offer something even to those who opposed it.
The first is that primacy of EU law is something the UK signed up to. It would be breaking a promise to qualify it. The proposal is not for British exceptionalism but for something that would be available in all member states. Of course, they could change the terms of this promise.
About 11,500 pieces of legislation come from the EU, much of it adopted before many of its citizens were born. It is a nonsense to pretend these are morally committed because this was promised on their behalf.
The second, the view of the British foreign secretary, is the EU would fall apart if one could not be sure that its laws were being complied with. There is little evidence occasional non-compliance would lead to break down or states would engage in overwhelming non-compliance. The evidence, in fact, points the other way.
There is no primacy of EU law in Norway but their transposition rate for directives within the European Economic Area – a central indicator of compliance – compares well with most EU states.
Evidence also stacks up well within the EU. The majority of EU law cannot be invoked within national courts, the central process for securing compliance. Yet EU law is still applied. In the single market where states have to transpose 2,146 directives into national laws, the transfer rate stands at 99.5% – evidence of high compliance.
The reforms might make the EU more resilient. It would allow debates about single issues to be less about whether the EU should exist and more about whether a particular law, or not, should be applied within the UK.
The debate about whether citizens from other EU states should have to be resident in the UK for a number of years is a case in point. Because there is a belief EU law cannot be overturned the British Government has made reform here an acid test of its renegotiations.
It is seeking amendment of the Treaties, which is a lengthy and politically costly process. There is even talk it will strip non-resident Britons of benefits to allow it to secure this policy within the framework of existing EU law.
In a few years, there may be another EU law which is equally divisive. It is unlikely that the British government would be able to go through all that process again to secure reform of that law.
Would it not simply be better if there were a mechanism which allowed it, or other member states, to disapply such laws whilst seeking to take account of the interests of other EU citizens and minimise the negative effects on these?
By Damian Chalmers Professor of European Union Law at the London School of Economics.