6 Evaluation and conclusions
Is the doctrine of the legislative
supremacy of Parliament under threat from EU law?
71. The evidence we received suggests that the
legislative supremacy of Parliament is not currently under threat
from EU law. The nearest the legislative supremacy of Parliament
has come to being threatened by EU law was the argument raised
by Eleanor Sharpston QC on behalf of Sunderland City Council in
Thoburn. That argument was, in summary, that EU law should
be seen as having been entrenched, rather than merely incorporated,
into domestic law, by virtue of a principle of EU law which was
independent of constitutional principles of national law, such
as dualism. It is this argument, the Explanatory Notes tell us,
that clause 18 will help counter.
72. We received a great deal of evidence on the impact
of the judgment of Lord Justice Laws in Thoburn, given
its importance to our inquiry. We draw from it the following conclusions:
- that the "entrenchment"
argument made by Sunderland City Council was bold rather than
strong;
- that Thoburn is a first-instance decision
of the High Court (not the Appeal Court as stated in the Government's
written evidence).[80]
As such it could be overturned by the Court of Appeal or the Supreme
Court;
- but that this was unlikely. None of the witnesses
thought that the judgment of Lord Justice Laws on this point was
weak; on the contrary, they commented that it was well reasoned,
to the extent that a higher court was more likely to follow it
that overturn it; and
- no evidence was submitted that the reasoning
of the judgment was under recent threat. On this point Professor
Hartley said: "changes in the fundamental principles can
occur, but I don't think anything has happened in the last 50
years to suggest that there has been a change, at least as far
as Europe is concerned, so I can't see anything that would make
the British courts—the UK courts—take a different
view from the view they've taken before."[81]
73. In the light of this evaluation we have no
reason to doubt that Thoburn reflected the well understood
and orthodox position, which left the constitutional principle
of dualism intact and is unlikely to be overturned.
74. The experts who gave evidence to us had differing
views on whether Lord Justice Laws was right to place statutes
in a hierarchy, at the top of which were "constitutional
statutes", which could not be subject to implied repeal.
Can an Act of Parliament derogate
from EU law by excluding the application of the ECA?
75. The majority of our witnesses thought that if
an Act of Parliament were to derogate from an EU Regulation or
Directive, and in so-doing expressly and unequivocally disapply
the European Communities Act, the courts would be likely to follow
the instruction of the derogating Act. They did not, on the whole,
think that the obiter comments of the three law lords in
the case of Jackson would make it less likely that the
courts would follow a derogating Act, although Professor Tomkins
thought we ought to be concerned about the impact of the Jackson
on Parliamentary sovereignty. But their views were necessarily
informed by their opinion of the proper scope of the legislative
supremacy of Parliament.
76. Our conclusions from the evidence we received
are as follows. We think it right that, should an Act of Parliament
instruct the courts to disapply an aspect of EU law, the courts
should do so: this is not only consistent with the case law of
the courts,[82]
but also with the doctrine of the legislative supremacy of Parliament;
and also with the rule of law. However unlikely such legislation
may be, it is of the highest importance for us, as a committee
of the House of Commons assessing the potential impact of EU law
on national law, to know that this principle holds true, and may
be relied on.
77. Professor Allan, by contrast, gives a role and
power to the courts that, when seriously entertained, make it
difficult to make any safe predictions about the future effect
of EU law on the legislative supremacy of Parliament:
"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 Act2.'"[83]
78. We think this view leads to a state of uncertainty
and gives primacy to the rule of EU law over the national constitutional
rule of law. And so we cannot see why it is "unrealistic"
for an Act of Parliament to ask judges to disapply an aspect of
EU law if it is the will of a democratically-elected Parliament,
even if it were to lead to infringement proceedings in the Court
of Justice. We also think there are degrees of non-compliance
with EU law, and that derogation from a Directive does not have
to lead to repealing the ECA and withdrawing from the EU. Professor
Hartley gave a good example of this: France's recent deportation
of Roma immigrants was almost certainly in violation of EU law
but, at the time of writing, had not led to infringement proceedings.[84]
79. More generally we think that, for the reasons
we cite above, there is considerable risk in the legislative
supremacy of Parliament being seen as a construct of the common
law if this means the principle will vary according to the judicial
climate of the time. Not least because it will lead judges
inevitably into a legislative role and raise issues of democratic
legitimacy and accountability. We note in this regard what Professor
Tomkins had to say about the case of Jackson:
"The leading case on this is the Jackson
case, which you talked about with your previous witnesses and
which I wrote at some length about in my written submissions to
the Committee, for the reason that, although it is a case that
on the face of it does not have anything to do with EU law, one
of the things that that case most sharply and, to my mind, alarmingly
indicates is that even our highest court, as was, is not sure
what to do with parliamentary sovereignty. It isn't sure what
the legal basis for parliamentary sovereignty is. It isn't sure
how much parliamentary sovereignty is under challenge. It isn't
sure how much parliamentary sovereignty continues to represent
the group 'norm' or the 'bedrock' or the 'keystone' of the constitution—all
of those words are used.
"The reason why the Jackson and the
Attorney-General case is so long, although so little was decided
in it, is that so many of the judges who decided that case, not
only in the House of Lords but also lower down, wanted to use
the case as a vehicle for the expression of a bewildering variety
of different views about the past, present and future state of
parliamentary sovereignty. 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."[85]
Clause 18
80. We draw the following conclusions on clause 18.
81. Clause 18 is a reaffirmation of the role of
a sovereign Parliament in a dualist state, nothing more, nothing
less. The principle of dualism, and Parliament's role within
it, is neither controversial nor in danger of erosion by the courts.
It did not need declaring in statute. The majority of the evidence
we received attests to this.
82. Clause 18 does not address the competing primacies
of EU and national law. The evidence we received makes plain
that these two spheres of law coexist, usually peacefully, clashing
occasionally. When they do clash, neither side gives way. The
Court of Justice of the EU maintains that EU law has primacy over
national law, including national constitutional law.[86]
National courts, such as the Divisional Court in the case of Thoburn
in the UK, maintain by one route or another that their constitutions
have primacy over EU law. This impasse has existed since
the Court of Justice first started asserting primacy over national
constitutions. It is irrelevant to clause 18 and, more importantly,
clause 18 is irrelevant to it—it cannot resolve it. So here
again the evidence suggests that clause 18 is not needed.
83. With the exception of one witness,[87]
the clear evidence we received suggested that, were clause 18
to be enacted, it could not prevent the argument that was run
in Thoburn from being run again. The Explanatory Notes,
however, raise the entrenchment argument in Thoburn as
the mischief which clause 18 will address, saying it "will
provide clear authority which can be relied upon to counter arguments
that EU law constitutes a new higher autonomous legal order".
And the Minister of Europe told Parliamentary colleagues in a
letter:
"[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."[88]
84. The evidence we have received contradicts this,
leading us to the conclusion that clause 18 would not be able
to counter the arguments made in Thoburn.
85. Nor do we accept the assertion made in the Minister's
letter of the "affirming the Common Law position in statute".
If Parliament wills it may legislate to override the European
Communities Act 1972 or the EU Treaties by repealing them, amending
them or any provisions in them, or by clearly and expressly legislating
inconsistently with them in respect of EU legislation or generally.
It seems to us from the evidence we received that,
if the legislative supremacy of Parliament is under threat, it
is from judicial opinions in other areas of law. One witness,
Professor Tomkins, spoke starkly of the unseen consequences of
limiting a clause on the legislative supremacy of Parliament to
EU law. Because of trends in judicial interpretation flowing from
the assertion of the common law basis of Parliamentary sovereignty,
we attach weight to the warnings expressed by Professor Tomkins
if the Government maintains clause 18 in the EU Bill. Expressing
a principle in the context only of EU law invites questions about
why Parliament chose not for it to apply more generally. Professor
Tomkins expressed the view that the Bill, overall "goes out
of its way to invite litigation".[89]
86. The consequence of our conclusions above is that
the Explanatory Notes are misleading when they state at paragraph
106 that the clause has been included "to address concerns
that the doctrine of Parliamentary sovereignty may be eroded by
the courts". Clause 18 is not a sovereignty clause in
the manner claimed by the Government, and the whole premise on
which it has been included in the Bill is, in our view, exaggerated.
We are gravely concerned that for political reasons it has been
portrayed by the Government as a sovereignty clause in correspondence
and also in the Explanatory Notes, which we discuss below. For
these reasons we deeply regret that the Secretary of State's
refused to come and give evidence himself on these matters.
Explanatory Notes
87. The Explanatory Notes present as fact what
the evidence we have received tells us is disputed, viewed from
any perspective. We are concerned about the precedent this
sets for future Explanatory Notes. Minimal research reveals the
depth of the division of opinion on whether Parliamentary sovereignty
is a common law principle (Professor Tomkins told us there was
"great controversy" about this),[90]
as it does whether Parliamentary sovereignty can ever be put on
a statutory footing. Yet, astonishingly, none of this is reflected
in the Explanatory Notes. In addition, the case law which they
quote—Macarthys and Thoburn—fails to
include relevant passages of the judgments of Lord Denning and
Lord Justice Laws and so gives a distorted impression.
88. Explanatory Notes are, we assume, drafted with
care; they may be used to illustrate the context and mischief
of an enactment, even if they are not approved by Parliament,
and this would apply in relation to clause 18. All the more reason
then that they should be drafted to reflect the status quo,
rather than to present a partial opinion.
89. Professor Tomkins summarises our concern well:
"I have never seen a Bill about which I
am so concerned about the explanatory notes as I am with regard
to this Bill. Explanatory notes are cited in court these days.
There are contrary dicta about the extent to which you can do
it, but it is a bit like the Pepper and Hart rule about ministerial
statements. It is clear that, as usual, these explanatory notes
have been very carefully drafted, but it is not clear that these
explanatory notes have the sole purpose of explaining what is
in the Bill."
Parliament binding its successors?
90. The arguments over binding future Parliaments
are interesting and the debate will continue among constitutional
lawyers and experts. But, in our view, as the UK does not have
a single codified constitutional document from which legislative
power is derived, there are no unambiguously constitutional "higher"
laws. All Parliaments legislate for the future. Laws passed by
one Parliament do not contain a sunset clause at the Dissolution.
The real point is whether a government can, in law, make it
difficult for a future Parliament to amend or repeal the legislation
it has passed; in our view it cannot. Our conclusion therefore
is straightforward—that an Act of Parliament applies until
it is repealed. We leave the final word with Professor Hartley,
who in summing up his evidence said that:
"[T]he Bill, assuming it becomes law, will
be an Act of Parliament. We know that Parliament cannot bind future
Parliaments, so a future Parliament could always change it. It
could repeal it—totally repeal it—or amend it, or
repeal it in part. I don't think that this Bill limits the powers
of Parliament, any more than the European Communities Act 1972
does—the original one."[91]
80 Ev 40. Back
81
Q 26. Back
82
See paragraph 46 of this Report. Back
83
Q 66. Back
84
Ev 11 (footnote). Back
85
Q 87. Back
86
See paragraph 18 of this Report. Back
87
Ev 24. Back
88
Dated 11 November 2010 (not printed). Back
89
Q 103. Back
90
Q 106. Back
91
Q 44. Back
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