The EU Bill and Parliamentary Sovereignty - European Scrutiny Committee Contents

3  Divergent opinion on the scope of Parliamentary sovereignty

22. In order to evaluate the stated purpose and likely effect of the Parliamentary sovereignty clause in the EU Bill, it is first necessary to understand, at least in outline, the debate currently taking place among academic commentators and some judges about what Parliamentary sovereignty in the UK really means. The debate is relevant to our inquiry because it has a bearing on:

—  whether to conclude that Parliamentary sovereignty is being eroded—the concern asserted by the Government in the Explanatory Notes[17]—or evolving;

—  whether the Government is correct to say that Parliamentary sovereignty is a "common law principle" that can "be put on a statutory footing",[18] described by Professor Tomkins as a matter of "great controversy";[19] and

—  whether a statutory provision derogating from EU law, and excluding the application of the ECA, would be enforced by the courts.

What is meant by Parliamentary sovereignty?

23. In the light of the evidence submitted to the inquiry we concluded, agreeing with Professor Bradley,[20] that the term "Parliamentary sovereignty" bears a number of meanings which can get confused. We prefer to use the term the "legislative supremacy of Parliament" in this Report for the reasons so clearly set out by Professor Bradley:

    "Dicey's Law of the Constitution made famous the phrase 'the sovereignty of Parliament', but a more exact term for the legal doctrine is 'legislative supremacy', whereby the power of the Queen-in-Parliament to legislate is subject to no legal limitations, and the courts have no power to review the validity of Acts of Parliament. This doctrine is always considered to be subject to the limitation that Parliament is unable to bind its successors (a matter to which I return briefly below). An advantage of using the term supremacy rather than sovereignty is that it enables the supremacy of EU law to be balanced against the supremacy of national law."[21]

An unsettled constitution

24. The British constitution, many commentators agree, is in a state of flux. Professor Tomkins in his evidence spoke of a "prolonged moment of constitutional fluidity",[22] and many of the witnesses enumerated significant constitutional reforms that have taken place in the UK over recent years. These include the devolution settlements, the Human Rights Act 1998 and the Constitutional Reform Act 2005, the last of which incorporated the principle of the rule of law in statute for the first time, and reinforced the principles of the separation of powers and independence of the judiciary by removing the judicial powers of Lord Chancellor and creating the Supreme Court. The 2005 Act did not disturb the Act of Settlement 1701, however, which included ultimate provision for Parliament to petition the Sovereign for the removal of judges.

Acts of Parliament v the common law

25. On one side of the debate are those who argue that the absolute sovereignty of Parliament as understood by Dicey remains unqualified, or at least should remain unqualified, by recent constitutional reforms or change in judicial climate. So Parliament can legislate however it chooses, for example to stop judicial review by the High Court. And if it did so, the judges would have to observe the terms of such legislation so long as they were unambiguously expressed. As Professor Tomkins says at paragraph 6 of his written evidence:

    "What the doctrine establishes is the legal supremacy of statute. It means that there is no source of law higher than—i.e. more authoritative than—an Act of Parliament. Parliament may by statute make or unmake any law, including a law that is violative of international law or that alters a principle of the common law. And the courts are obliged to uphold and enforce it."

The late Lord Bingham was emphatic that judges should be subservient to the legislative supremacy of Parliament, as quoted here in the written evidence of Professor Tomkins:

    "It has to my mind convincingly been shown that the principle of parliamentary sovereignty has been recognised as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot, by themselves, change it."[23]

Professor Jeffrey Goldsworthy, who submitted written evidence[24] and whose book on Parliamentary sovereignty was described by Lord Bingham as "magisterial",[25] is also a notable proponent of this view.

26. On the other side of the debate are those whose view is that the sovereignty of Parliament is a construct of the common law. As such it is open to revision by the courts in circumstances where, say, a court has to reconcile contradictory statutory provisions, or a higher law, such as a fundamental human right, is violated. Professor Allan, who subscribes to this view, explained it as follows:

    "The nature and scope of legislative supremacy are matters of common law in the sense that they are questions to be resolved, necessarily, by the courts in order to determine contested and doubtful cases. Such cases depend for correct resolution on consideration of all the pertinent reasons. The present context, concerning the implications of British membership of the EU, vividly illustrates the dependence of Parliament's continuing legislative authority on judicial interpretation of the nature of the UK legal order, viewed as a whole.

    "The Thoburn judgment provides a good illustration of the operation of the common law constitution. In seeking to accommodate the European doctrine of the primacy of EU law with the supremacy of Parliament, as a matter of domestic constitutional law, Lord Justice Laws made—or rather proposed—a very modest change to the general rule permitting implied repeal: it would be necessary for Parliament expressly to amend or repeal the ECA before it could be overridden by a later statute."[26]

Professor Craig shared Professor Allan's belief that Parliamentary sovereignty was a construct of the common law[27] and that "it was not beyond peradventure"[28] that the courts would disapply a statutory provision which was violative of fundamental rights. In answer to a question from the Chairman,[29] Professor Craig reconfirmed his previously stated view that the legislative supremacy of Parliament was ultimately to be decided by the courts as being "derived from normative arguments of legal principle, the content of which can and will vary across time". He also reconfirmed that "on this view, there is no a priori inexorable reason why Parliament merely because of its very existence must be regarded as legally omnipotent", a view which he shared with Professor Allan.

Professor Bradley expressed a "qualified belief in Parliamentary sovereignty".[30] Underpinning the evidence of all three witnesses was the view that Parliament could not be supreme—that is, having the capacity to make any law whatsoever—simply by dint of being Parliament: a further, normative justification was required.[31] A corollary of this view was that the courts could in extreme cases, for example where the rule of law was infringed, disapply the offending provision of an Act of Parliament.

The Jackson case

27. The scope of the legislative supremacy of Parliament issue was considered by the appellate Committee of the House of Lords in the case of Jackson v Attorney General[32] in 2005, which concerned a challenge to the constitutional validity of the Hunting Act 2004. Professor Tomkins commented that, although "the case had nothing to do with EU law [...] it is the most recent leading decision on the law of parliamentary sovereignty [and] is directly relevant to a number of the issues raised in the Committee's call for evidence".[33] For this reason we cite the relevant passages from the judgements here, and return to it in a subsequent section of the Report.

28. In Jackson three of the law lords, albeit obiter (that is, not in relation to the question the court was being asked to decide), suggested that in certain circumstances the courts had inherent powers to disapply legislation.

Lord Steyn said:

    "We do not in the United Kingdom have an uncontrolled constitution as the Attorney General implausibly asserts. In the European context the second Factortame decision made that clear: [1991] 1 AC 603. The settlement contained in the Scotland Act 1998 also point to a divided sovereignty. Moreover, the European Convention on Human Rights as incorporated into our law by the Human Rights Act, 1998, created a new legal order. One must not assimilate the ECHR with multilateral treaties of the traditional type. Instead it is a legal order in which the United Kingdom assumes obligations to protect fundamental rights, not in relation to other states, but towards all individuals within its jurisdiction. The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish."[34]

Lord Hope said:

    "Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute. It is not uncontrolled in the sense referred to by Lord Birkenhead LC in McCawley v The King [1920] AC 691, 720. It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified.

    "For the most part these qualifications are themselves the product of measures enacted by Parliament. Part I of the European Communities Act 1972 is perhaps the prime example. Although Parliament was careful not to say in terms that it could not enact legislation which was in conflict with Community law, that in practice is the effect of section 2(1) when read with section 2(4) of that Act. The direction in section 2(1) that Community law is to be recognised and available in law and is to be given legal effect without further enactment, which is the method by which the Community Treaties have been implemented, concedes the last word in this matter to the courts. The doctrine of the supremacy of Community law restricts the absolute authority of Parliament to legislate as it wants in this area."[35]

And Lady Hale said:

    "The concept of Parliamentary sovereignty which has been fundamental to the constitution of England and Wales since the 17th century (I appreciate that Scotland may have taken a different view) means that Parliament can do anything. The courts will, of course, decline to hold that Parliament has interfered with fundamental rights unless it has made its intentions crystal clear. The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny. Parliament has also, for the time being at least, limited its own powers by the European Communities Act 1972 and, in a different way, by the Human Rights Act 1998. It is possible that other qualifications may emerge in due course. In general, however, the constraints upon what Parliament can do are political and diplomatic rather than constitutional."[36]

We note in passing that, consistent with the reasoning of Lord Bridge in Factortame, all three judges directly or indirectly cite the ECA as an early example of the restriction of Parliamentary sovereignty, albeit as a result of a (voluntary) Act of Parliament.

By contrast, Lord Bingham observed in Jackson that:

    "The bedrock of the British constitution is, and in 1911 was, the supremacy of the Crown in Parliament. It is, as Maurice Kay LJ observed in para 3 of his judgment, unnecessary for present purposes to touch on the difference, if any, made by our membership of the European Union. Then, as now, the Crown in Parliament was unconstrained by any entrenched or codified constitution. It could make or unmake any law it wished. Statutes, formally enacted as Acts of Parliament, properly interpreted, enjoyed the highest legal authority."[37]

17   Paragraph 106 of the Explanatory Notes. Back

18   Paragraphs 8 and 106 of the Explanatory Notes. Back

19   Q 106. Back

20   Ev 24. Back

21   IbidBack

22   Q 93. Back

23   Ev 6. Back

24   Ev 31. Back

25   Goldsworthy, Jeffrey, The Sovereignty of Parliament: History and Philosophy (OUP, 2001). This book was followed by Parliamentary Sovereignty: Contemporary Debates (Cambridge Studies in Constitutional Law, CUP, 2010). Back

26   Ev 27. Back

27   Q 7. Back

28   Q 7. Back

29   Q 8. Back

30   Q 49. Back

31   Q 8. Back

32   [2006] 1 AC 262. Back

33   Ev 4. Back

34   [2006] 1 AC 262, Paragraph 102. Back

35   Ibid, Paragraphs 104 and 105. Back

36   [2006] 1 AC 262, Paragraph 159. Back

37   Paragraph 9. Back

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Prepared 24 December 2010