The EU Bill and Parliamentary Sovereignty - European Scrutiny Committee Contents

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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