4 The sovereignty clause
The clause
29. Clause 18 is contained in Part 3 of the Bill
and provides as follows:
Status of EU law dependent on continuing statutory
basis
It is only by virtue of an Act of Parliament
that directly applicable or directly effective EU law (that is,
the rights, powers, liabilities, obligations, restrictions, remedies
and procedures referred to in section 2(1) of the European Communities
Act 1972) falls to be recognised and available in law in the United
Kingdom.
Stated purpose
30. On 11 October the Government issued a Written
Ministerial Statement in the House of Commons on the sovereignty
clause. It stated:
The Government have explored how to ensure that
this fundamental principle of parliamentary sovereignty is upheld
in relation to EU law. We have assessed whether the common law
provides sufficient ongoing and unassailable protection for that
principle. Our assessment is that to date, case law has upheld
that principle. But we have decided to put the matter beyond speculation
by placing this principle on a statutory footing.
31. In a letter to colleagues on the day the Bill
was introduced, the Minister for Europe (David Lidington) explained
that:
"[w]hile, in our view, the Common Law is
clear that the doctrine of Parliamentary sovereignty has not been
affected by Britain's membership of the EU, it cannot be denied
that the issue has been the subject of legal and political speculation
and arguments to the contrary have been seriously advanced in
a court of law. So we believe there is great merit in putting
the matter beyond speculation by affirming the Common Law position
in statute, which will reinforce the rebuttal of contrary arguments
in the future."
32. The Explanatory Notes accompanying the Bill are
intended "to help inform debate on it". They deal in
some length with clause 18.[38]
Paragraphs 104 and 105 explain that the clause is declaratory
of the dualist nature of the UK's constitution, by which EU law
is only enforceable under national law because the ECA makes express
provision for it to be so. In answer to why it has been included
in the Bill, paragraph 106 says clause 18 serves:
to address concerns that the doctrine of Parliamentary
sovereignty may in the future be eroded by decisions of the courts.
By placing it on a statutory footing the common law principle
that EU law takes effect in the UK through the will of Parliament
and by virtue of an Act of Parliament, this will provide clear
authority which can be relied upon to counter arguments that EU
law constitutes a new higher autonomous legal order derived from
the EU Treaties or international law and principles which has
become an integral part of the UK's legal system independent of
statute.
33. Paragraphs 107 and 108 deal with the 'Metric
Martyrs' case[39] and
cite paragraph 59 of the judgment of Lord Justice Laws as support
for the statement of the common law principle in paragraph 106,
cited above. Paragraphs 109 and 110 add two clarifications. Paragraph
109 states that clause 18
does not alter the existing relationship between
EU law and UK domestic law; in particular the principle of primacy
of EU law. The rights and obligations assumed by the UK on becoming
a member of the EU remain intact.
34. Paragraph 110 adds that "the clause is declaratory
of the existing common law position" and does not alter the
competences of the devolved legislatures or administrations.
38 See Appendix. Back
39
See paras 8-21 of this Report. Back
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