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
WHAT IT PURPORTS TO DO
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.
WHAT IT DOES DO
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]
WHAT IT DOES NOT DO
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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