Appendix
EUROPEAN UNION BILL
Explanatory Notes
Status of EU law
Clause 18: Status of EU law dependent on continuing
statutory basis
104. Clause 18 is a declaratory provision
which confirms that directly applicable or directly effective
EU law only takes effect in the UK as a result of the existence
of an Act of Parliament. The words 'by virtue of an Act of Parliament'
cover UK subordinate legislation made under Acts, and because
of the particular context of this clause, also covers Acts and
Measures of the devolved legislatures in exercise of the powers
conferred on them by the relevant UK primary legislation.
105. This reflects the dualist nature of the UK's
constitutional model under which no special status is accorded
to treaties; the rights and obligations created by them take effect
in domestic law through the legislation enacted to give effect
to them. Although EU Treaties and judgments of the EU Courts provide
that certain provisions of the Treaties, legal instruments made
under them, and judgments of the EU Courts have direct application
or effect in the domestic law of all of the Member States, such
EU law is enforceable in the UK only because domestic legislation,
and in particular the European Communities Act 1972, makes express
provision for this. This has been clearly recognised by the Courts
of the UK. As Lord Denning noted in the case of Macarthys Ltd
v. Smith ([1979] 1 WLR 1189): "Community law is part
of our law by our own statute, the European Communities Act 1972."
106. This clause has been included in the Bill to
address concerns that the doctrine of Parliamentary sovereignty
may in the future be eroded by decisions of the courts. By placing
on a statutory footing the common law principle that EU law takes
effect in the UK through the will of Parliament and by virtue
of an Act of Parliament, this will provide clear authority which
can be relied upon to counter arguments that EU law constitutes
a new higher autonomous legal order derived from the EU Treaties
or international law and principles which has become an integral
part of the UK's legal system independent of statute.
107. In the 'Metric Martyrs' case (Thoburn v.
Sunderland City Council [2002] EWHC 195 (Admin)), attempts
were made, but rejected, to run the proposition that the legislative
and judicial institutions of the EU may set limits to the power
of Parliament to make laws which regulate the legal relationship
between the EU and the UK. It was argued that, in effect, 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. This argument was rebutted by the High Court,
who noted that Parliament cannot bind its successors by stipulating
against repeal, wholly or partly, of the European Communities
Act 1972.
108. Paragraph 59 of the judgment in the 'Metric
Martyrs' case illustrates this point. Lord Justice Laws stated:
"59. Whatever may be the position elsewhere,
the law of England disallows any such assumption. Parliament cannot
bind its successors by stipulating against repeal, wholly or partly,
of the ECA. It cannot stipulate as to the manner and form of any
subsequent legislation. It cannot stipulate against implied repeal
any more than it can stipulate against express repeal. Thus there
is nothing in the ECA which allows the Court of Justice, or any
other institutions of the EU, to touch or qualify the conditions
of Parliament's legislative supremacy in the United Kingdom. Not
because the legislature chose not to allow it; because by our
law it could not allow it. That being so, the legislative and
judicial institutions of the EU cannot intrude upon those conditions.
The British Parliament has not the authority to authorise any
such thing. Being sovereign, it cannot abandon its sovereignty.
Accordingly there are no circumstances in which the jurisprudence
of the Court of Justice can elevate Community law to a status
within the corpus of English domestic law to which it could not
aspire by any route of English law itself. This is, of course,
the traditional doctrine of sovereignty. If it is to be modified,
it certainly cannot be done by the incorporation of external texts.
The conditions of Parliament's legislative supremacy in the United
Kingdom necessarily remain in the United Kingdom's hands. But
the traditional doctrine has in my judgement been modified. It
has been done by the common law, wholly consistently with constitutional
principle."
109. This clause does not alter the existing relationship
between EU law and UK domestic law; in particular, the principle
of the primacy of EU law. The rights and obligations assumed by
the UK on becoming a member of the EU remain intact.
110. This clause is declaratory of the existing common
law position and does not alter the competences of the devolved
legislatures or the functions of the Ministers in the devolved
administrations as conferred by the relevant UK Act of Parliament.
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