The EU Bill and Parliamentary Sovereignty - European Scrutiny Committee Contents


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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