2 The UK's legal relationship with
the EU
9. To come to a conclusion on whether a statutory
provision is necessary to shield the doctrine of Parliamentary
sovereignty from EU law requires an explanation of the relationship
between national and EU law.
European Communities Act 1972
10. The UK is a 'dualist' state, unlike many continental
European countries, which are 'monist'.[2]
In dualist states a treaty ratified by the Government does not
alter the laws of the state unless and until it is incorporated
into national law by legislation. This is a constitutional requirement:
until incorporating legislation is enacted, the national courts
have no power to enforce treaty rights and obligations either
on behalf of the Government or a private individual.
11. Under the European Communities Act 1972 (ECA)
Parliament voluntarily gave effect to the UK's obligations and
duties under the former Community and now EU Treaties in national
law. The ECA defines the legal relationship between the two otherwise
separate spheres of law, and without it EU law could not become
part of national law.
12. Section 2(1) provides:
All such rights, powers, liabilities, obligations
and restrictions from time to time created or arising by or under
the Treaties, and all such remedies and procedures from time to
time provided for by or under the Treaties, as in accordance with
the Treaties are without further enactment to be given legal effect
or used in the United Kingdom shall be recognised and available
in law, and be enforced, allowed and followed accordingly; and
the expression "enforceable EU right" and similar expressions
shall be read as referring to one to which this sub-section applies.
More simply stated, section 2(1) means that provisions
of EU law that are directly applicable or have direct effect,
such as EU Regulations or certain articles of the EU Treaties,
are automatically "without further enactment" incorporated
and binding in national law without the need for a further Act
of Parliament. Section 2(1) applies to EU law now and as it develops
in the future "from time to time" either by Treaty revision
"created by" or interpretation by the Court of Justice
of the EU "arising under". So, when an EU Regulation
enters into force, it automatically becomes part of national law,
as it does in the other 26 Member States on the same day. The
uniqueness of section 2(1) is that it gives effect to directly
applicable or effective EU law without the need each time for
implementing legislation, as would usually be required for the
incorporation of other obligations assumed under international
law by a dualist State. The domestic courts are obliged to give
full effect to section 2(1), in the light of the case law of the
Court of Justice (section 3(1)).
13. Section 2(2), by contrast, applies to measures
of EU law that are neither directly applicable nor have direct
effect. This provision makes it possible to give effect in national
law to such measures by secondary, or delegated, legislation,
such as statutory instruments; importantly, such secondary legislation
can amend an Act of Parliament (section 2(4)) since the delegated
legislative power includes the power to make such provision as
might be made by Act of Parliament.[3]
14. Section 2(4) also provides that:
any enactment passed or to be passed [...] shall
be construed and have effect subject to the foregoing provisions
of this section" (the 'foregoing provisions' include section
2(1)).
15. Section 3(1) provides:
For the purpose of all legal proceedings any
question as to the meaning or effect of any of the Treaties, or
as to the validity, meaning or effect of any EU instrument, shall
be treated as a question of law (and, if not referred to the European
Court, be for determination as such in accordance with the principles
laid down by and any relevant decision of the European Court).
16. Section 2(4) and 3(1) give effect to the doctrine
of the supremacy of EU law, as interpreted by the Court of Justice,
over national law; and where EU law is in doubt, requires UK courts
to refer the question to the Court of Justice. As a consequence
of the rule of construction in section 2(4) all primary legislation
enacted by Parliament after the entry into force of the ECA on
1 January 1973 is to be construed by the courts and take effect
subject to the requirements of EU law. This obliges the courts
to disapply legislation which is inconsistent with EU law. This,
in short, is what happened in the celebrated Factortame[4]
case: Part II of the Merchant Shipping Act 1988 was held by
the House of Lords to be inconsistent with EU law and therefore
disapplied. The same principle was followed by the House of Lords
in disapplying discriminatory provisions in the Employment Protection
(Consolidated) Act 1978.[5]
In neither Act was there any provision expressly providing for
the later enactment to apply notwithstanding the ECA.
17. The power given to national courts under section
2(4) is remarkable, because, by disapplying provisions of primary
legislation, the court refused on these two occasions to give
effect to an Act—the will—of Parliament. It is also
unique: it is only by virtue of the ECA that the courts have this
power. Under the Human Rights Act, for example, the courts have
the power to make a declaration of incompatibility, but not to
disapply the offending statutory provision.
A challenge to that legal relationship
- the 'Metric Martyrs' case
18. The relationship between EU law and national
law—in this case national constitutional law—was most
prominently tested in the 'Metric Martyrs'[6]
case, which was decided by the Divisional Court (part of the High
Court) in 2002. The leading judgement was given by Lord Justice
Laws. It is to counter the arguments made in this case, the Explanatory
Notes tell us, that the so-called Parliamentary sovereignty clause
was included in the Bill. Counsel for Sunderland City Council
(one of the prosecuting authorities), Eleanor Sharpston QC, now
the UK Advocate-General at the Court of Justice, argued before
the Divisional Court that the binding effect of the EC Treaty
in domestic law did not depend solely upon the terms of its incorporation
by the ECA, but also upon the higher principle of the supremacy
of EU law, independent of national law, established by the Court
of Justice in cases such as Costa v ENEL.[7]
In Costa v ENEL the Court of Justice held that:
It follows […] that the law stemming from
the Treaty, an independent source of law, could not, because of
its special and original nature, be overridden by domestic legal
provisions, however framed, without being deprived of its character
as Community law and without the legal base of the Community itself
being called into question.
The transfer by the States from their domestic
legal system to the Community legal system of the rights and obligations
arising under the Treaty carried with it a permanent limitation
of their sovereign rights, against which a subsequent unilateral
act incompatible with the concept of the Community cannot prevail.[8]
The effect of this argument was that EC law had become
entrenched, rather than merely incorporated, into
domestic law, by virtue of a principle of EU law which was independent
of constitutional principles of national law, such as dualism.
If this argument were right, the consequence would have been that
the EU institutions could set limits on the power of Parliament
to make laws which regulate the legal relationship between the
EU and the UK.[9]
19. Lord Justice Laws rejected the argument, saying
that it would mean that Parliament, in enacting the ECA, had agreed
to bind its successors to EU supremacy over it, which, being sovereign,
it could not do: "[t]here is nothing in the ECA which allows
the Court of Justice, or any other institutions of the EU, to
touch or qualify the conditions of Parliament's legislative supremacy."[10]
In so deciding, he also held that the ECA was a "constitutional"
statute which could not be impliedly repealed by subsequent statutes.
His reasons for this finding were as follows:
"In the present state of its maturity the
common law has come to recognise that there exist rights which
should properly be classified as constitutional or fundamental
[…]. And from this a further insight follows. We should recognise
a hierarchy of Acts of Parliament: as it were "ordinary"
and "constitutional" statutes. The two categories must
be distinguished on a principled basis. In my opinion a constitutional
statute is one which (a) conditions the legal relationship between
citizen and state in some general, overarching manner, or (b)
enlarges or diminishes the scope of what we would now regard as
fundamental constitutional rights. (a) and (b) are of necessity
closely related: it is difficult to think of an instance of (a)
that is not also an instance of (b). The special status of constitutional
statutes follows the special status of constitutional rights.
Examples are the Magna Carta, the Bill of Rights 1689, the Act
of Union, the Reform Acts which distributed and enlarged the franchise,
the H[uman] R[ights] A[ct], the Scotland Act 1998 and the Government
of Wales Act 1998. The ECA clearly belongs in this family. It
incorporated the whole corpus of substantive Community rights
and obligations, and gave overriding domestic effect to the judicial
and administrative machinery of Community law. It maybe there
has never been a statute having such profound effects on so many
dimensions of our daily lives. The ECA is, by force of the common
law, a constitutional statute.
"Ordinary statutes may be impliedly repealed
Constitutional statutes may not. For the repeal of a constitutional
Act the abrogation of a fundamental right to be effected by statute,
the court would apply this test: is it shown that the legislature's
actual—not imputed, constructive or presumed—intention
was to effect the repeal or abrogation? I think this test could
only be met by express words in the later statute […]."[11]
20. We asked the witnesses to assess the impact of
Thoburn. In his written evidence, Professor Bradley commented
that, in failing to include the quotation above, the Government's
Explanatory Notes "do not present a balanced account of this
complex judgment".[12]
We agree with this view. He concluded that four propositions could
be drawn from the judgment:
"(1) All the specific rights which EU law
creates are by the 1972 Act incorporated into our domestic law
and rank supreme: that is, anything in our substantive law inconsistent
with any of these rights and obligations is abrogated or must
be modified to avoid the inconsistency. This is true even where
the inconsistent municipal provision is contained in primary legislation.
"(2) The 1972 Act is a constitutional statute:
that is, it cannot be impliedly repealed.
"(3) The truth of (2) is derived, not from
EU law, but purely from the law of England: the common law recognises
a category of constitutional statutes.
"(4) The fundamental legal basis of the
UK's relationship with the EU rests with the domestic, not the
European, legal powers. In the event, which no doubt would never
happen in the real world, that a European measure was seen to
be repugnant to a fundamental or constitutional right guaranteed
by the law of England, a question would arise whether the general
words of the 1972 Act were sufficient to incorporate the measure
and give it overriding effect in domestic law. But that is very
far from this case."[13]
21. Professor Hartley summarised the judgment as
follows: "the Thoburn principle is that the position
of EU law in the UK and the sovereignty of the British Parliament
ultimately depend on British law."[14]
Professor Allan as follows: "I think the Thoburn judgment
affords quite a useful reconciliation. We go as far as we can
to accept the primacy of the EU law, but without accepting the
constitutional basis put forward by the European Court of Justice."[15]
And Professor Craig as follows:
"[M]y reading of Thoburn—I
don't think this at all unorthodox or heterodox—is as follows:
what Lord Justice Laws said in Thoburn was that the constitutional
impact of EU law on national law was not going to be dictated
top-down by the European Court of Justice on our courts. The nub
of his thesis was that whatever impact EU law had within the UK
was going to be decided by UK constitutional precepts and by UK
courts. That was not at all inconsistent in and of itself with
the House of Lords decisions in Factortame and the Equal
Opportunities Commission case. So it is for our courts to
decide what they believe to be the impact of EU law within our
national constitutional order. That is what I think Lord Justice
Laws was saying, and rightly so, in the Thoburn case."[16]
2 In a 'monist' state, a treaty obligation becomes
directly applicable in domestic law simply by virtue of the act
of ratification, cf. Article 55 of the Constitution of the French
Republic. Back
3
The provisions of s.2(4) do not, of course, displace the power
to implement by Act of Parliament, and it would remain necessary
to implement by Act of Parliament (or under some other power)
in those cases where Schedule 2 of the ECA limits the scope of
s.2(2). Back
4
Factortame (No 1) [1990] 2 AC 85; Factortame (No 2)
[1991] 1 AC 603. Back
5
R v Secretary of State for Transport, ex p. Equal Opportunities
Commission [1995] 1 AC 1. Back
6
Thoburn v Sunderland City Council [2002] EWHC 195 (Admin). Back
7
[1964] ECR 585. Back
8
Paragraphs 593-594. Back
9
See paragraphs 56 and 57 of the judgment of Laws LJ in Thoburn. Back
10
Paragraph 58 of the judgment of Laws LJ in Thoburn, quoted
in full in paragraph 108 of the Explanatory Notes. Back
11
Paragraphs 62 and 63. Back
12
Ev 26. Back
13
Ev 26; the propositions quoted are conclusions reached by Lord
Justice Laws. Back
14
Q 25. Back
15
Q 77. Back
16
Q 5. Back
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