Dear Mr Goodman, 

I am the Editor of the Candidlist, which seeks to list the opinions on European integration of Parliamentary Candidates at the next election. The lists are available on the Internet and have generated much comment in the media. 

You can access the Candidlist and the media comment surrounding it by going to www.candidlist.com - you will notice that we have had about eighty thousand visitors in the past year. 

I have been given your name as the Conservative Candidate for Wycombe, and so am writing to ask your answers to the following questions: 

1) If elected or re-elected to Parliament, would you oppose our joining the Eurozone even if joining were to be recommended by the Party leadership? 

2) If elected or re-elected to Parliament and required to choose between accepting the supremacy of European Union law in this country and leaving the European Union, would you vote for British withdrawal? 

I must emphasise that Candidlist does not support any political party and that its sole purpose is to enable concerned electors to make an informed choice among candidates of all the main parties. 

Before answering either of the above questions, I do strongly urge you to look at the General Introduction to Candidlist given on our web site. I also suggest that you should inspect the lists of names and some of the published correspondence. It is the practice of Candidlist to publish correspondence with candidates. Otherwise, please feel free to contact me, and I shall try to answer any question that you may have. 
 

Yours sincerely, 

Sean Gabb 
Candidlist Webmaster 

Dear Sean,

Thank you for your letter and questions.

My answers are as follows.

1) I am against scrapping the pound in any circumstances.

2) My understanding is that, under the European Communities Act of 1972, European law is already supreme in this country, subject to the continuing assent of Parliament.  Would you be kind enough to explain the mechanism whereby the assent or dissent of Parliament would permanently possess no legal force?

You may be trying to find out candidates' views about British withdrawal from the EU.  I am in favour of a fundamental renegotiation of our relationship with it.

Yours sincerely

Paul Goodman

Dear Paul,

Many thanks for your e-mail of earlier today, in reply to my letter of yesterday.

Since you have answered yes to the first question, I will pass at once to your request for a clarification of the second.

European Union law is not currently supreme in this country, as it does not proceed from a sovereign lawgiver. Instead, it enjoys a borrowed primacy, subject, as you say, to the continued forbearance of our sovereign Parliament. However, the doctrine of parliamentary sovereignty is not something absolutely fixed and certain. It is a doctrine of the courts. It was in the past occasionally denied by the courts, when Acts of Parliament were overturned on the grounds of their repugnancy to some other part of the Constitution. It could easily in the future be denied. The Judges so far have remained at least ambiguous on what effect the European Communities Act 1972 might have on legislation passed since then. But I do not find it incredible to suppose that in the near future the sort of Judges now being appointed may decide that membership of the European Union and full subordination to its laws are part of our own constitutional law, and not subject to parliamentary alteration.

If that should happen, the only way to preserve parliamentary sovereignty would be to pass an immediate Declaratory Act asserting the challenged doctrine, and to threaten any dissenting Judges with removal from office or impeachment or both. To do nothing would be to allow a course of legal development in which Parliament would soon enjoy the same limited power as the Scottish Assembly now does. But to pass this Declaratory Act might by implication repeal the effective parts of the European Communities Act 1972, thereby removing us from the European Union. This is not a certain implication, as it is possible that the European institutions and other member states might choose to overlook our constitutional housekeeping. But it is a possible and, I presently suspect, a highly probable implication. That is why I ask the question. Would you, if elected to Parliament, vote to save the doctrine of parliamentary sovereignty even if doing such meant leaving the European Union?

I hope this is sufficient clarification. If it is not, I shall be happy to answer any further questions you may have.

Yours sincerely,

Sean Gabb
Candidlist Webmaster

Dear Sean,

Thank you for sparing the time and trouble to answer my question.

Like you, I am not a constitutional lawyer, but your explanation of how the assent or dissent of Parliament to the supremacy of European law could be declared permanently to possess no legal force seems plausible. I think that it will be appreciated by readers of the Candidlist, and thus hope that our correspondence has been useful to them.

In the circumstances you depict, I will, if a Member of Parliament at the time, vote in favour of a Declaratory Bill of the kind you describe. We must have the right to be masters in our own house if we wish. So my answer to your second question is 'Yes'.

Yours sincerely,

Paul Goodman

Dear Paul,

Thank you for your e-mail of earlier today.

I do much appreciate the promptness and fullness of your answer to both the Candidlist questions, and am happy to confirm your status on the List as a sceptic.

With my very best wishes.

Yours sincerely,

Sean Gabb
Candidlist Webmaster

Neither Idris Francis nor Torquil Dick-Erikson is a member of Candidlist. However, their letters regarding Mr Goodman's responses may be of some interest and illustration

Sean Gabb

Dear Mr. Goodman

With reference to your reply to Sean Gabb and in particular this part of  your reply:

''My understanding is that, under the European Communities Act of 1972, European law is already supreme in this country, subject to the continuing assent of Parliament. Would you be kind enough to explain the mechanism whereby the assent or dissent of Parliament would permanently possess no legal force?'

I agree that the right of the EU to impose their laws upon us is in principle and in law subject to the continuing assent of the British Parliament, and I copy separately the relevant parts of the 1975 referendum leaflet and Baroness Symon's statement in the Lords on 12 May 1998, confirming that position.

However, I copy also the view of the Legal Directorate of the EU that we may not leave, and  what they would do if we tried.

What we have here is therefore the clash of opinions based on different legal systems and mindsets.

There is no doubt whatever that when we decide to leave the EU they would refer the matter to the EU court - and there is no doubt whatever that this court would confirm that we may not leave.

Our reply would of course be that, having left, we are not bound in any way by that decision.

In the last resort however, if neither side were prepared to give way, this disagreement would not be settled by interpretation of legal documents, by judges or courts but (as I stated in my featured letter in the Daily Mail of 16 Feb) by a much more basic factor - which side has the economic and military muscle to enforce its view.

There is no doubt whatever that at present Britain would win such a physical fight to leave - but for how much longer? The vital question is:

"How much further down the road of EU integration dare we go before Corpus Juris, Europol, 6,000 armed riot police and the European Army (even now being moved sideways out of Nato) mean that we no longer have any realistic prospect of enforcing our theoretical right to leave the EU?"

In my view we certainly have no more than another 4 or 5 years before we reach that point of no return - at least in terms of leaving without external help.

I am, however, hopeful that, if we fail to see sense before that point, the support of the Anglo Saxon world, especially America and Canada, would ensure that the clear and unequivocal wish of Britain to leave the EU would still prevail even when our own, direct physical ability would not suffice. 

But all that this would achieve would be a postponement of the point of no return, because the longer we stay in the less support we could expect from the Anglo saxon world we have forsaken for the false fromises of the EU..

It is because I see all too clearly that if we fail to leave, soon, by democratic means that we will end up leaving by means of civil war or worse that I spend almost all my time fighting for our depature, without any further delay.

The answer therefore to your question:-

"Would you be kind enough to explain the mechanism whereby the assent or dissent of Parliament would permanently possess no legal force?' is:

"When the economic and physical ability of Britain to enforce its view has diminished, and the economic and physical ability of the EU to enforce its view has increased, to the point where Britain no longer has any practical ability to leave."

Our present plight is made worse by those, even convinced, Eurosceptics who allow the drift into the coming, indeed imminent, super (and police) state to continue, in the apparent belief that when it finally all goes pear-shaped we can just walk away. The point of no return is not far away, and it is time to wake up. Please stop pretending that the EU is in any way intended to be a system of cooperting nation states which will maintain their independence. If you believe that, you will believe anything.

Yours sincerely,

Idris Francis

Dear Idris,

I congratulate you on one of the most masterly explanations of the situation I have yet read anywhere. It ought to be published somewhere.

May I just add, by way of supporting evidence, that the ECJ would assert its jurisdiction over us, and therefore its legal empowerment  to order us not to leave, also by virtue of Article K7.6 (now numbered as 35.6) of the Treaty introduced at Amsterdam. At the time of Amsterdam I already publicised the significance of K7.6 in The European Journal (in articles published in September 1997, and November 1997 "Into the Lobster Trap"). 

The essential part of this article states that "The ECJ shall have jurisdiction to review the legality of decisions... in actions brought by the Commission... on grounds of ...infringement of the Treaty or of a rule of law relating to its application." and clearly this can be used by the Commission and the ECJ to rule that a unilateral decision to leave is an infringement and so must cease.

What is extraordinarily interesting is that in the Lords debate on the Treaty, Baroness Symons speaking for the government, stated her view (it can be found in Hansard) that paragraph 6 of article K7 would not apply to the UK, because the UK was not going to make a voluntary declaration as provided in paragraph 2. This was incorrect, for it was clear from the text that para 2 did not cover the paras of the article from 4 onwards, (para 2 refers specifically only to para 1, which is also referred to by para 3, but para 4 opens with the words "Any member state, whether or not it has made the declaration... in para 2 above, shall..."); so that paragraph 6 
does apply in any case, whether or not the declaration was made.

This discrepancy however between the government's stated understanding of  the Treaty and what the Treaty actually provided was not noticed let alone debated by any of those present. Senior German diplomats consulted informally by me here in Rome at the time confirmed my view that the government had indeed misread the Treaty and that article K7.6 applied in any case (They were also highly alarmed at the news that No British Parliament can bind its successors, as was an Italian expert working at the Italian Senate who put forward the view that if that were so then perhaps logically Britain's membership of the EU was vitiated right from the 
beginning...).

It would be interesting to extract an official opinion from a central EU authority (say the Commission's legal directorate) now, as to whether K7.6 is an "optional fixture" in the Treaty, covered by the voluntary declaration of  K7.2, or whether it applies on all signatories regardless. The whole Treaty of Amsterdam was therefore signed by the government and accepted by Parliament on the basis of a misreading of its provisions by the government. A misreading which was given to Parliament, not contested by anyone in Parliament, and therefore it can be taken that Parliament 
ratified the Treaty having misread this vital provision.

One of the (English) rules for the interpretation of laws is that judges may also look at Hansard to see what the intentions of the legislators were when any particular form of words in the text of a Statute is debated, in cases where there are doubts or difficulties as to its meaning. Perhaps some constitutional lawyers might care to chew on this one, and see what the consequences are on the validity of an international treaty when signed and ratified in these circumstances. Idris, you might care to pass this information on to a couple of constitutional lawyers we know. However this is again one of those crucial matters so woefully neglected by nearly all of our national press, for reasons which (being unstated) can only give rise to the worst suspicions...

Cheers Torquil 
(Torquil Dick-Erikson)