The EU Bill and Parliamentary Sovereignty - European Scrutiny Committee Contents

5  Evidence from expert witnesses

35. We have divided the evidence we took under four main headings:

  • Is the doctrine of the legislative supremacy of Parliament under threat from EU law?
  • Can an Act of Parliament derogate from EU law by excluding the application of the ECA?
  • Clause 18; and
  • Parliament binding its successors?

We report on our conclusions in the subsequent chapter.

Is the doctrine of the legislative supremacy of Parliament under threat from EU law?

36. Paragraph 106 of the Explanatory Notes says clause 18 will help "counter arguments that EU law constitutes a new higher autonomous legal order derived from the EU Treaties or international law". We asked the expert witnesses who gave evidence to us whether they agreed.

37. Their replies necessarily involved an evaluation of the judgment of Lord Justice Laws in Thoburn and its likelihood of being overturned. This is because it was in Thoburn (and Thoburn alone) that the argument was advanced that EU law was a higher legal order that had become entrenched autonomously, so not through the gateway of the ECA, in the national constitution. Their views were mixed.

38. Several of the witnesses thought that the judgement in Thoburn was well reasoned and, though only a first instance decision of the Divisional Court (of the High Court), was unlikely to be overturned. When asked if Thoburn was likely to be overturned, Professor Craig said that:

    "the decision in Thoburn was a very well-reasoned decision, but it was a decision of the Divisional court and it could, in that sense, be overturned or overtaken by a decision of the Court of Appeal or the Supreme Court—so, undoubtedly, yes. On the argument of the substance of the point, one would, of course, be hypothesising as to whether the Court of Appeal or the Supreme Court would be likely to overturn the reason. But, my own view is whether they did so or not—I think they would affirm the same reasoning in Thoburn."[40]

39. Professor Hartley agreed: "I don't think the Supreme Court would take a different view. So theoretically a different view could be taken; in practice, I don't think it would." Professor Tomkins also agreed, but counselled against placing too much reliance on a first-instance decision of the High Court. When we asked Professor Tomkins whether Parliament could be sure, as a consequence of the Thoburn decision, that EU law was only directly applicable and effective in the EU by means of the ECA, he replied:

    "That's my view, and that was my view long before Lord Justice Laws decided the Thoburn case. That was my view when I first read and tried to understand the Factortame litigation from 10 years previously. I think that it's an uncontroversial position to take. I'm not aware of anybody taking the alternative position seriously, apart from Eleanor Sharpston QC—as she then was—who put the argument to the contrary on behalf of her clients in the Thoburn case."[41]

40. In his written evidence Professor Dougan was particularly dismissive of the concerns raised in paragraph 106 of the Explanatory Notes and clear that EU law is enforced nationally only by means of the ECA:

    "It should be observed from the outset that the "concerns" referred to in para 106, so far as concerns the domestic status of EU law, find no objective basis in UK constitutional law and no real support within mainstream scholarly opinion. In fact, the argument that EU law could somehow oust Parliamentary sovereignty as the cornerstone of the UK constitutional order—particularly when expressed in terms of a slow-burning judge-led plan to recognise the EU as a self-authenticating entity whose authority is substituted for that of the UK (or any other Member State)—is essentially political in nature."[...]

    There is a strong consensus among legal experts that EU law was and remains incorporated into UK law by virtue of an Act of Parliament. Doctrines such as the duty of consistent interpretation (the obligation of national courts to interpret national law, as far as possible, in conformity with EU legislation), the principle of direct effect (the capacity of a provision of EU law to produce cognisable legal effects within the national system) and the principle of supremacy (the preference given to EU law where national law is incompatible with directly effective EU provisions) all apply within the UK thanks to the Parliamentary mandate created by the European Communities Act 1972, as interpreted by the UK courts in landmark rulings such as R v Secretary of State for Transport, ex parte Factortame (No 2) [1990] 3 WLR 818 and R v Secretary of State for Employment, ex parte Equal Opportunities Commission [1995] 1 AC 1.

    On the basis of that mandate, the UK courts will interpret UK legislation in conformity with our EU obligations and will disapply UK legislation if it conflicts with directly effective EU law. The requirement that directly effective EU law enjoys supremacy in the event of an irreconcilable conflict with national law is a highly significant practical reality within the UK—but it does not take effect in some autonomous manner, directly under the authority of the European Union or the European Court of Justice, independently of or despite the will of Parliament itself. Its fundamental constitutional basis remains the principle of Parliamentary sovereignty.[42]

41. Professors Allan and Bradley were more circumspect. But their arguments were concerned more with the ability of an Act of Parliament to disapply the ECA than with the autonomous encroachment of EU law. Professor Bradley did not think that Thoburn answered:

    "all the future questions that there might be about the relationship between European Union law and United Kingdom law for this reason: the European Communities Act provides the doorway through which European Union law is received, but it is a very short Act, and European Union law is very complex, being a legal system of a kind to which we have not been exposed before. Therefore, there is the European dimension which cannot simply be controlled by the European Communities Act. So long as the European Communities Act remains in force, at a European level, European law will prevail. The difficulties come—they were seen in the Thoburn case to be difficulties that the courts could deal with—if it is the intention of Parliament to depart from European Union law, how it should do that and, when it has done that, what the effects of it will be as a matter of United Kingdom constitutional law. Those difficulties have not been fully resolved by the Thoburn case."

42. Although Professor Allan thought the "entrenchment view" argued in Thoburn was "rather weak" and "rightly rejected", he followed a similar line of reasoning to Professor Bradley:

    "I think that the halfway house, keeping the European Communities Act unamended but then having a notwithstanding clause in relation to a later measure, sets up a real contradiction. The longer we remain a member of the European Union and the more powers that are transferred, the less realistic it becomes, probably, for judges—not to deny that Britain could not withdraw altogether—but the more unrealistic it becomes to expect judges to disapply or, rather, to override EU law in particular instances. I do think there is some possibility there that doctrine may shift in that respect and so we might then see Thoburn as one step towards a larger modification whereby the judges would say, 'Well, we must have an explicit repeal or amendment of the European Communities Act.'"[43]

Can an Act of Parliament derogate from EU law by excluding the application of the ECA?

43. Overall, the majority of witnesses thought that if an Act of Parliament were to derogate from an EU Regulation or Directive, for example,and in so doing expressly and unequivocally disapply the ECA, the courts would be likely to follow the derogating Act of Parliament. They did not, on the whole, think that the obiter comments of the law lords in Jackson would make it less likely that the courts would follow the derogating act,[44] although Professor Tomkins thought we ought to be concerned about the impact of Jackson on Parliamentary sovereignty.[45] But their views were necessarily informed by their opinion of the scope of the legislative supremacy of Parliament, reported in chapter 3, as interpreted by the courts, whose duty it was to uphold the rule of law, under EU law through the ECA as well as national law.

44. Professor Hartley thought that Parliament could legislate contrary to EU law:

    "Provided it makes its intention clear, Parliament can legislate contrary to Union law. It can restrict or abolish the power of the European Court to give judgments that are legally binding in the United Kingdom. It can abolish, in whole or in part, the power of United Kingdom courts to refer questions to the European Court. If the Act was appropriately drafted, there would be no way in which its effectiveness could be challenged in the courts of the United Kingdom."[46]

45. In evidence he elaborated further:

    "provided the revocational amending statute was appropriately drafted, was clear and unequivocal and expressed clearly, notwithstanding anything in EU law and notwithstanding the European Communities Act 1972. If it was in sufficiently strong terms, then in my opinion, the Supreme Court would accept it as valid law and would not disapply it."[47]

46. His views were consistent with those of Lord Denning in Macarthys Ltd. V Smith—an authority referred to in the Explanatory Notes, although this important passage of the judgment was inexplicably and wrongly omitted—who said:

    "If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it or intentionally of acting inconsistently with it and says so in express terms then I should have thought that it would be the duty of our courts to follow the statute of our Parliament. ... Unless there is such an intentional and express repudiation of the Treaty, it is our duty to give priority to the Treaty."[48]

47. Professor Bradley thought this was a difficult question, but his view, at the moment, was that "if the intention is made very clear in the derogating statute that it is to operate, notwithstanding the particular rule of EU law, that is what the courts would apply and enforce.[49] Professor Allan was less sure. He thought that if the ECA gives instructions to the judges to respect the primacy of EU law—which, in effect, it does—and a subsequent statute says that EU law is not to apply in a particular instance, the judges would be faced with a conflict of instructions. They then have to decide what the United Kingdom legal order requires them to do in those circumstances. He thought it was very hard to know the correct answer, although on balance he concluded that the courts would probably follow the derogating Act for the time being. However, a political solution might be preferred:

    "I think that is right, but it may be that the judges are not the right forum. It may be that we have to rely on political measures to resolve the problem in the machinery of the Union. Otherwise we are giving judges conflicting statutory instructions and they have some duty to ensure that the rule of law, in the sense that people know what their obligations are, has reasonable certainty. Professor Bradley may be right. At the moment I think that a clear notwithstanding clause would probably be accepted, but I don't think we can be confident that that will remain the case for ever."[50]

48. Professor Tomkins also thought a clear "notwithstanding clause" would be respected by the courts:

    "I agree with the evidence that you've heard already this morning that it is very difficult to know whether clause 18 adds anything very much to the current legal and political debate about what the effect of a "notwithstanding" clause is likely to be. The short answer is we simply don't know what the British courts would do with a "notwithstanding" clause, as it hasn't been in legislation that has been litigated. I agree with the evidence of Professors Bradley and Allan that, assuming that the "notwithstanding" clause was sufficiently robustly and tightly drafted, as you would expect it to be, the British courts, on current evidence, would be highly likely to give effect to it."[51]

Clause 18


49. In its written evidence, the Government says that:

    "by providing by statute that directly applicable and directly effective European Union law takes effect in the UK by virtue of an Act of Parliament, Parliament will be affirming the existing position under the common law, and making a clear and unambiguous statement of its intention. As paragraph 106 of the Explanatory Notes says, 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.' It will deal with the main concern expressed by the commentators which is that there may be future judicial drift on the question of how the primacy of EU law is achieved domestically in UK law;"[52]

and that:

    "[s]etting out categorically that directly applicable and directly effective European Union law takes effect in the UK by virtue of an Act of Parliament puts the matter beyond speculation and will assist the courts by providing clarity about Parliament's intentions."[53]

50. However, the evidence, both written and oral, given by our witnesses does not support this legislative intention. It also begs the question whether it was right for the Explanatory Notes to say that Parliamentary sovereignty was a) "a common law principle" that could b) be put on a statutory footing.


51. The great majority of the witnesses agreed that clause 18 is nothing more at most than a restatement of the doctrine of dualism. If it can be properly called a sovereignty clause at all, it is "sovereignty as dualism"[54] thought Professor Craig—but nothing to do with sovereignty as the legislative supremacy of Parliament over the courts[55]. It simply reaffirms the idea that no treaty negotiated by the executive can take effect domestically until adopted by the legislature by Act of Parliament. As such, all agreed that it was declaratory (but consequently not constitutive of a right).

52. Opinions differed on whether clause 18 had any symbolic effect, but the great majority thought it did not. Professor Craig, however, thought its symbolic effect could come into play in two "unlikely scenarios": in the gap between Parliament repealing the ECA and the UK withdrawing from the EU Treaties, and as support for an act of Parliament which derogated from EU law by excluding the ECA.[56]

53. In his written evidence, Professor Hartley set more store by the symbolism of the clause:

    "I think that the clause has value, because it emphasises that this is the law and this is the constitutional position. In my opinion, even without clause 18, courts would do what it says, but it would encourage and sort of strengthen them. I think that it has value even though, strictly speaking, it does not change anything."[57]


54. Professor Bradley did not see a need for clause 18:

    "I see no good reason to dispute what is almost a truism, but I am not persuaded that there is a need for this even as a declaratory measure for the avoidance of doubt. If this is enacted, we can be certain that if at a future date the UK Parliament wished to revoke the 1972 Act to enable Britain to leave the EU, an Act to do so would be upheld by United Kingdom courts. However, is there any real doubt about this at the present time?

    "But as is clearly stated in para 109 of the Explanatory Notes, what clause 18 does not do, and could not do, is to alter the nature of EU law, its primacy within the EU system and its relationship with UK law.

    Nor does clause 18 provide an answer to questions about implied repeal of the kind that were considered by Laws LJ in the Metric Martyrs case."[58]

55. In oral evidence, Professor Bradley said that clause 18 was "unlikely to have much practical effect" but "may have symbolic effect", but this would be very limited:[59] it would not have led to a different conclusion in Factortame.[60]

56. Professor Allan was particularly dismissive of clause 18:

    "The Explanatory Memorandum, paragraph 107, shows that clause 18 is intended to resist the theory whereby 'the law of the EU includes the entrenchment of its own supremacy as an autonomous legal order, and the prohibition of its abrogation by the Member States'. The clause is apparently intended to confirm the view of Lord Justice Laws, who insisted that since Parliament could not abandon its own continuing sovereignty, it was not possible for the ECJ by its own jurisprudence to alter the constitutional basis on which EU was received in the UK.

    "It is hard to see how clause 18, if enacted, could affect the existing constitutional position. If it is true that the constitutional basis for the reception of EU law is a matter of British constitutional law, it must be true in virtue of a correct understanding of the common law. According to Lord Justice Laws's account, Parliament may not abandon or surrender its continuing legislative supremacy, which is ultimately defined by judicial interpretation of the UK legal and constitutional order. Clause 18 therefore makes no difference: since it is a question of the nature and boundaries of Parliament's powers, a statutory declaration adds nothing to the existing common law position.

    "If, in the alternative, Thoburn were wrongly decided, and the correct position were that the autonomous EU legal order is now also the constitutional basis for the authority of EU law in the UK, clause 18 would equally be unable to alter the position. A court which accepted that the primacy of EU law was now entrenched within the UK would be forced to conclude that clause 18, if enacted, was erroneous.

    "The Explanatory Memorandum, para 106, says that by 'placing on a statutory footing the common law principle that EU law takes effect in the UK though 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 … which has become an integral part of the UK's legal system independent of statute. It is not, however, possible to place such a common law principle 'on a statutory footing' because the principle concerns the nature of continuing legislative authority. If, for example, a new statute were to purport to override, or derogate from, directly applicable EU law, there would be a conflict with the legal consequences of the ECA, which only the courts could resolve. Doubts about the limits or consequences of conflicting statutory instructions cannot be resolved by appeal to further such instructions without begging the question at issue."[61]

57. In evidence to us Professor Allan stated that he could not see how the clause would have any effect at all, other than restating the dualism principle. If there was no enabling power for legislation implementing EU law, that flaw could already be raised as a legal challenge without the need for clause 18. In the event that the Supreme Court did overturn Thoburn, finding that EU law was a higher legal order entrenched by virtue of the UK's membership of the EU alone, clause 18 would make no difference: the court would have to conclude that it was an erroneous declaration. He concluded: "I can't see any circumstances in which clause 18 could be significant other than perhaps in a purely symbolic way, as a restatement."[62] Similarly, neither Professor Craig nor Allan thought clause 18 would have been able to prevent the "entrenchment argument" raised in Thoburn.[63]

58. Professor Goldsworthy was equally dismissive of Clause 18 and the Explanatory Notes, (and the passages in our Press Notice "Announcement of Inquiry" which were taken from, but did not endorse, the Explanatory Notes) but for opposite reasons to those of Professor Allan in the last paragraph of the quotation above. For him it is not only "dangerous, but false" to say that Parliamentary sovereignty is a common law principle. On the other side of the debate to Professor Allan, Professor Goldsworthy rejects any notion that Parliamentary sovereignty can be "made by the judges", if so they could "at any time 'unmake' it if they should come to the view that it is no longer justified". He also rejects the statement that Parliamentary sovereignty can be put on a statutory footing because an enactment containing a provision declaring Parliamentary sovereignty would necessarily presuppose that Parliament already has the sovereign authority to enact it.

59. Professor Craig, in saying clause 18 addressed "sovereignty as dualism", drew a distinction with sovereignty as the legislative supremacy of Parliament:

    "Clause 18 is not a sovereignty clause in that it tells us nothing as such about the relation between EU law and national law in the event of a clash between the two. It does not address sovereignty as primacy. Indeed EM para 109 expressly states that nothing in Clause [18] is intended to affect this."[64]

60. Professor Tomkins expanded on the same point in his evidence:

    "There are two claims to supremacy on the table here and there have been since 1964, when Costa v. ENEL was decided by the Court of Justice eight years before the UK joined. These two claims to supremacy compete with one another. So far in the history of the European Union, quite remarkably, these two claims to sovereignty have never clashed. The nearest they came to clashing in the UK case, of course, was the example of Factortame. But they have never actually clashed, so we don't know what will happen if or when they do. It's necessarily a speculative exercise.

    "The immediate question for this Committee and the House is whether clause 18 will make any difference to any of this. My respectful submission to you is that it doesn't."[65]

61. In relation to the assumptions made in paragraph 106 of the Explanatory Notes Professor Tomkins said:

    "First, there is great controversy, as we have already seen, about whether parliamentary sovereignty is a common law principle. Secondly, clause 18 does not place on a statutory footing the common law principle of parliamentary sovereignty, not even with respect to directly applicable or directly effective EU law. It doesn't deal, as you have already heard, with the primacy issue; it deals only with the source issue, which isn't really a question of sovereignty."[66]

62. He also said that he found clause 18 "baffling", because "it is addressing only that little bit of what is actually a much bigger set of concerns, and it is addressing the little bit of a much bigger set of concerns that does not seem to be problematic",[67] and that this could lead to dangerous consequences:

    "Why put it in? I think it's extremely dangerous, as I say in the closing paragraphs of my written submissions. The rule that I would respectfully urge you to bear in mind in dealing with this or any other question of constitutional reform is the most powerful law of constitutional reform, which is the law of unintended consequences. The more I think about this, the smaller clause 18 seems. It seems to be dealing, as I said a few moments ago, with one aspect of a big problem that is not itself particularly problematic, because it was fairly clearly dealt with by the Thoburn judgment. Yes, we can't be overly relaxed about the fact that the Thoburn judgment is definitive for all intents and purposes. None the less, it's the state of the law for the time being, and nobody is really suggesting to you that it shouldn't be the state of the law for the time being. It deals with that. That's an issue that doesn't really need to be dealt with. It doesn't deal with any of the problems that do really need to be dealt with, in my respectful judgment, relating to questions of sovereignty in the context of the relationship between the UK and the EU. Nor does it deal with any other of the challenges to parliamentary sovereignty outwith the context of the EU that again do, in my submission, need at least to be considered or examined, if not necessarily legislated for."[68]

63. Towards the end of his evidence he repeated the point, in starker terms:

    "if the House of Commons were to proceed to legislate this Bill into law without considering what the implications of legislating on a little bit of parliamentary sovereignty might be on the rest of the areas that I have highlighted in which parliamentary sovereignty may be perceived to be under challenge, there may be very grave consequences in terms of the way in which such incomplete and partial legislation would subsequently be used in case law. I tried to sketch that out in the closing paragraphs of my written submission."[69]

Parliament binding its successors?

64. This Report deals primarily with consideration of clause 18. However, as Professor Bradley states in his written evidence, discussion of legislative supremacy is likely to involve the proposition that Parliament is unable to bind its successors.[70] He sees it as remarkable therefore that the Government's Explanatory Notes do not deal with the application of this proposition to the proposals that approval to certain changes in EU law will require first to be approved by an Act of Parliament and that the change should be approved by a referendum. Clauses 2, 3 and 6 provide that the Act of Parliament to approve a specific change must contain provision for the holding of a referendum. Professor Bradley goes on to state that:

    "It is one thing for Parliament to require that certain actions may be taken by the Government only when approval has been given for them by a further Act. But today's Parliament may not require that further Act to include the requirement of a referendum. A future Parliament may of course expressly repeal or amend the requirement of a referendum clause, but (unless the present European Union Bill is recognised by the courts as being a constitutional statute, and thus immune from implied repeal) what is the position if no referendum clause is included in the later Act—either because no such clause is proposed by the Government or if a referendum clause is proposed but is then defeated?"

He poses the question of whether it is envisaged that a future Act of Parliament that did not include a referendum clause would be subject to judicial review. And suggests that in direct contrast to Laws LJ in the Thoburn case, in Part 1 of the Bill, Parliament is attempting to "stipulate as to the manner and form of any subsequent legislation".

65. For Professor Dougan there was an obvious irony in the drafting of a Bill which sought to safeguard the UK from what was, in his view, a fictitious prospect of an attack from the EU or from UK judges on the basis of EU law. By proposing "referendum locks" the Government was attempting "to persuade the current Parliament to bind its successors in a manner which runs counter to accepted understandings of our constitutional order."[71]

66. Two submissions mentioned the present Government's indication that it will not support any Treaty change, or transfer of powers in this Parliament.[72] The inference therefore had to be that the purpose of the Bill was to prevent a future government from supporting such an amendment or transfer without a referendum—that the Bill seeks, in other words, to bind a future government. For Professor Bogdanor this was inconsistent with the Bill's declaratory proposition that Parliament is sovereign.[73] When questioned on this, Professor Bradley commented that the Government was entitled to say that there will be no transfer of power or competence in the lifetime of this Parliament and that Parliament could incorporate that statement in legislation if it wished to. But he went on to say:

    "What I think cannot happen is that it would be binding on future Parliaments. I have in mind a similar point in the Fixed-term Parliaments Bill. It is one thing for this Government and Parliament to say that the next election is going to be on such and such a date in five years' time. It is not really competent for this Parliament to say that the next Parliament also has to have a fixed term of five years, because that Parliament will surely be able to make up its own mind."[74]

67. Following the argument put forward by Professor Tomkins, it appears that whether a Parliament is "bound" turns on the proposition that there is such a thing as a "constitutional statute", an expression which, in his view, was invented by Lord Justice Laws in his judgement on the Thoburn case in order to deal with the argument put by counsel about implied repeal.[75] In Professor Tomkins' opinion, implied repeal occurs when Parliament has forgotten that it has already legislated about something, or when there has been an oversight leading to the mutual incompatibility of two pieces of legislation.

68. Professor Goldsworthy's written evidence states:

    "To seek to bind future parliaments by prohibiting the enactment of legislation without a referendum first being held is not consistent with the doctrine of parliamentary sovereignty."[76]

But he goes on to say that to be effective the prohibition would have to be "self-entrenched", that a referendum would be needed to bring about the repeal of the Act which seeks to bind future Parliaments. Furthermore, that the Act itself should be subject to a referendum in order to entrench it and avoid a situation in which a later Parliament might seek to ignore the prohibition and reassert its sovereign authority to legislate without a referendum. All this to counter the objection:

    "[that] if an earlier Parliament can use ordinary legislation to implement its preferred policies, why should a future Parliament not have the same liberty? To put it another way, why should the later Parliament be bound by the expression of a will that has no higher authority than its own will? This is the main justification of the orthodox view that Parliament cannot bind itself. But if a referendum requirement is enacted with the support of a majority of voters in a referendum, the objection is overcome. A future Parliament could then be said to be bound, not by an earlier will of no higher authority than its own will, but by an earlier will that does have such a higher authority—the expressed will of the people."[77]

69. Governments may legislate to place restrictions on their scope for executive action, although the Government itself may well argue that it has no need of the self-imposed restriction, because it would never seek to do what it has seen necessary to proscribe by law. To revert to Professor Bradley's comments on the Fixed-term Parliaments Bill, the Coalition Government has said that it will call the next general election on 7 May 2015. The Fixed-term Parliaments Bill is intended therefore to bind future governments. But Parliament cannot be bound and a future government may repeal the legislation.[78] The same must apply in the case of the European Union Bill. Repealing the provisions which provide for a "referendum lock" may cause political difficulties for a future government, but it does not restrict the ability of a future Parliament to repeal or amend the legislation.

70. Even if one were to accept the argument on "entrenchment" and consider the "referendum lock" provisions in the Bill, by invoking the will of the people, to introduce a "higher authority" over Parliament, there remains the problem which Professor Goldsworthy himself raises.[79] The European Union Bill, which places these requirements on governments, is not itself to be endorsed by a referendum; it would be difficult to argue that it could not be repealed without one.

40   Q 14. Back

41   Q 82. Back

42   Ev 11. Back

43   Q 66. Back

44   Q 70, for example. Back

45   Q 87: "The case, I think, is authority for not much, but it is authority for the proposition that we have the right to be concerned about what is going to happen to parliamentary sovereignty in the hands of the courts." Back

46   Ev 11. Back

47   Q 30. Back

48   Macarthys Ltd. v Smith [1979] 3 All ER 325 at 329, as reported in paragraph 11 of Professor Hartley's written statement.  Back

49   Q 64. Back

50   Q 68. Back

51   Q 90. Back

52   Ev 41. Back

53   Ibid. Back

54   Q 11. Back

55   See paragraph 23 of this Report. Back

56   Ev 13, Q 10. Back

57   Q 31. Back

58   Ev 25. Back

59   Q 55. Back

60   Ev 25. Back

61   Ev 26-28. Back

62   Q 56. Back

63   See Qq 14 and 56 for example. Of the witnesses who gave evidence only Professor Bradley disagreed with this (Q 52). Back

64   Ev 14. Back

65   Qq 92 and 93. Back

66   Q 106. Back

67   Q 84. Back

68   Q 94. Back

69   Q 101. Back

70   Ev 26.  Back

71   Ev 13. Back

72   Professor V. Bogdanor (Ev 28), Andrew Duff MEP (Ev 21).  Back

73   Ev 28. Back

74   Q 75. Back

75   Q 102. Back

76   Ev 31. Back

77   Ibid. Back

78   For example, the Septennial Act 1715 as amended by the Parliament Act 1911. Back

79   Ev 31. Back

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