22 NOVEMBER 2010
Welcome to the Committee.
you very much for inviting me.
It is a great pleasure to have you here. I am just going to make
a brief opening statement, if I may, for the benefit of putting
on the record what we are about.
The coalition Government have introduced the
European Union Bill. This is the first time, since the European
Scrutiny Committee was established in 1972 under Standing Orders,
that the Committee has formally examined a Government European
Bill, either before Second Reading or at all. The Bill is of great
constitutional importance. It is about how we are governed, by
whom and by what democratic consent. It is on a par with the European
Communities Act 1972 itself in many respects. It follows the Lisbon
Treaty, which in its turn followed the constitutional treaty,
which was aborted when rejected by referendums in France and the
Netherlands. The Bill deals with the holding of referendums and
other matters, as well as, in clause 18, the issue of parliamentary
The Government have provided their own explanatory
notes to accompany the Bill, which contain certain assertions.
In this inquiry, we shall examine those assertions and report
on them to the House of Commons. This is a critical time, as all
can see, in the political, economic and constitutional situation
within the EU and in the relationship between the United Kingdom
and the European Union. All of those affect the daily lives of
the electorate in an increasing way. Indeed, as we speak, the
Chancellor of the Exchequer is making a statement regarding financial
assistance to Ireland.
The European Scrutiny Committee is an all-party
Committee, with functions under Standing Order No. 143 to examine
European documents containing matters of legal and political importance,
and to report them to the House. We consider more than 1,000 documents
each year, recommending those appropriate for debate and, through
what is called the scrutiny reserve, imposing a restriction on
Ministers voting in the Council of Ministers on directives and
recommendations until the debate we have recommended has taken
place. All of that induces negotiation and discussions between
the Government, other member states and the European Commission,
and changes in the wording of directives, as part of the continuing
process. We also have functions in relation to recommending debate
and the potential discontinuance of proposals where we indicate
that they breach the rules on subsidiarity; that is, that in our
view the proposals should not be put through at EU level.
The Government have agreed to give evidence
to the Committee, with regard to the contents of the Bill, before
it is put to the House on Second Reading, as to the principle,
the scope and the title of the Bill. We anticipate Second Reading
in about three weeks' time. Despite our representations, which
we made very strongly, the Government have refusedunreasonably,
in our viewto delay Second Reading. They have insisted
that it takes place and therefore the principle of the Bill will
be decided within four weeks of its introduction on 11 November.
We have therefore decided to take immediate evidence on clause
18, which relates to parliamentary sovereignty, and to report
our conclusions to the House on that before Second Reading. We
shall then report on the referendum lock and other matters before
the Committee stage of the Bill is taken.
Thus, we have decided to seek and take evidence
on the Bill as a whole, under the powers given to us under Standing
Orders, from the public and from witnesses other than from the
Government, and from those witnesses who have special knowledge
but very different opinions regarding matters such as the UK constitutional
implications of the Bill; the influence and jurisdiction of the
judiciary on the interpretation of both constitutional and European
law; and the assertions of the European Court of Justice as to
jurisdiction over the constitution of the United Kingdom, and
therefore over the Westminster Parliament. All those issues greatly
affect the daily lives of the electorate, as well as the workings
of the Westminster Parliament, the Government and the courts.
There are undoubted and profound differences of opinion, not only
in the public mind but at the highest level among the judiciary
and former members of the judiciary, constitutional lawyers, Members
of Parliament, Parliament as a whole, commentators and the media
regarding the European question and its effect on the United Kingdom
and its people.
We urge that, given the responsibilities of
the BBC in relation to its charter, the parliamentary channel
and the Democracy Live website provide the public and the electorate
with the greatest possible opportunity to hear and view our proceedings.
These are matters of public policy under the BBC charter and affect
the licence holder directly because the Bill concerns their daily
lives. Similar considerations arise in relation to the application
of criteria under the Broadcasting Act to the commercial broadcasters,
and we hope that the rest of the media will also take note.
Our first witness today is Professor Paul Craig,
professor of law at Oxford university and of St John's college,
Oxford. Welcome, Professorit's a great pleasure to have
you here. Thank you very much for sending us your evidence, which
we received this morning. My first question is, in your view what
is the status of Declaration 17 on the primacy of EU law? Is it
to be regarded as politically or legally binding on member states
or both? And, can Declaration 17 bind the Supreme Court of the
United Kingdom or, alternatively, be used by it as an aid to interpretation?
you very much indeed for the question, and I thank members of
the Committee for inviting me to be here.
Declaration 17 was a watered-down version of
the clause that appeared in the constitutional treaty. Prior to
the constitutional treaty, and indeed since then, there has never
been a supremacy clause embodying in hard law the principle that
EU law has supremacy over national law. That was embodied in the
constitutional treaty; it was one of the things that was decided
to be dropped from the constitutional treaty when the Lisbon Treaty
was reformulated. Instead, we had Declaration 17.
In brief, my view is that Declaration 17 will
change nothing in terms of the case law as it existed before,
either by the European Court of Justice or the responses of the
national courts. The ECJ will continue to affirm that it has primacy
over all national law, including national constitutional law.
It has taken that position ever since the Internationale Handelsgesellschaft
case in the 1970s, and it has never really shifted from that position,
so, in its view, all EU law takes precedence over all national
law. No national court has accepted the full impact of that assertion
of authority by the ECJ. Pretty much all national courts, to varying
degrees, have placed qualifications on the assertion or the arrogation
of supremacy of the ECJ, and, to put it more specifically, pretty
much all national courts place reservations on the extent to which
the ECJ's jurisprudence and EU law will take precedence over a
national constitution and/or fundamental rights.
The Declaration is obviously weaker than the
corresponding provision would have been in the constitutional
treaty because it is only a Declaration, and therefore not part
of the main body of the treaty. I do not think that the Supreme
Court in the United Kingdom will feel compelled to change its
position as expressed in Factortame and the Equal Opportunities
Commission case: in so far as it has accepted the supremacyor
primacyof Community law, I think that it will continue
to do so. However, I do not think it will feel compelled to accept
the supremacy or primacy of EU law all the way down in that sense.
I do not think there is anything in Declaration 17 that will compel
the Supreme Court in the United Kingdom to accept that the primacy
of EU law over national law is unqualified in the sense that it
takes precedence over national constitutional precepts in the
you very much indeed for that answer. Kelvin Hopkins has the next
HOPKINS: Should clause 18 of the
European Union Bill refer to section 3(1) of the European Communities
Act, as well as section 2(1)? What weight do you think the Court
of Justice of the EU would attach to clause 18?
you for that question. As I indicated in my written submission,
viewed from one perspective clause 18 is entirely un-novel and
entirely traditional. It simply affirms the fact that EU law takes
effect within the national constitutional order in the UK by and
through an Act of Parliament. Under traditional dualist theory
in the United Kingdom, a statute is a precondition for any treaty
to be accepted into the national constitutional order.
I read the reference to section 2(1) in clause
18 simply to be a reference to a shorthand way of referring to
the body of community rights, liabilities, powers and so on, which
are part of EU law and which then take effect in UK law. In that
sense, that is the rationale, as I saw it, for the shorthand reference
to section 2(1). I am not sure that anything in particular would
be gained by adding section 3(1) to that. Clause 18 is not, in
my view, or in the view of the framers of this Bill, a primacy
clausesee paragraph 109 of the explanatory memorandum.
It is not a clause about the primacy of EU law, therefore I don't
think there is any particular reason for the inclusion of section
3(1) in clause 18, nor do I think that the European Court of Justice
would in any particular way draw one conclusion or another from
is very clear. Thank you very much. Would Penny Mordaunt like
to ask the next two questions?
MORDAUNT: First, has the question
of whether EU law has supremacy over the constitutional doctrine
of parliamentary sovereignty been finally resolved by the decision
of the divisional court in Thoburn? Secondly, can we be sure that
EU law is only directly effective and applicable in national law
because of the European Communities Act?
you very much for those two questions. We could take a long time
on both of them, but as we have only a limited amount of time,
I will be as brief as possible.
Lord Justice Laws is coming to this Committee, so he will be able
to give his own view of things.
CRAIG: I have
the greatest respect for Lord Justice Laws.
On the first question, my reading of ThoburnI
don't think this at all unorthodox or heterodoxis as follows:
what Lord Justice Laws said in Thoburn was that the constitutional
impact of EU law on national law was not going to be dictated
top-down by the European Court of Justice on our courts. The nub
of his thesis was that whatever impact EU law had within the UK
was going to be decided by UK constitutional precepts and by UK
courts. That was not at all inconsistent in and of itself with
the House of Lords decisions in Factortame and the Equal Opportunities
Commission case. So it is for our courts to decide what they believe
to be the impact of EU law within our national constitutional
order. That is what I think Lord Justice Laws was saying, and
rightly so, in the Thoburn case.
Logically, that of course means that it is still
open to our national courts, within the framework of that reasoning,
to, in effect, go in a number of different directions while staying
within the framework of that reasoning. In other words one could,
at one end of the scale, postulate a situation in which a national
courtperfectly consistently with the reasoning of Lord
Justice Laws in the Thoburn casemight well say that the
impact of the EU law on national law was very far-reaching indeed,
albeit decided and finalised by the UK courts in accordance with
national constitutional precepts. They could also take the same
conceptual foundation and reach rather more limited conclusions.
One way of looking at this, or a way of testing
it is that, as I have mentioned, Lord Justice Laws saw nothing
inconsistent between his view of the conceptual foundation of
EU law in national law and the decisions of the superior courts
in the Factortame case and the Equal Opportunities Commission
caseindeed he was, of course, bound by that jurisprudence.
If you put the House of Lords decisions in EOC
and Factortame together with Thoburn, what you get, I think, is
the following position: a position in which the constitutional
reception of EU law into national law is dictated by and dependent
upon our constitutional precepts of sovereignty, as interpreted
by our courts. Okay? You then reason back up to Factortame and
the EOC, and what you see is our courts, reasoning from their
own constitutional precepts of sovereignty, reaching a conclusion
under whichsubject to the possibility of an express Act
of Parliament stating the contraryin terms of substantive
law, when there is a clash between EU law and national law, EU
law should, prima facie, take supremacy. That's the answer to
question number one. Could you remind me of question number two?
MORDAUNT: It is about whether
we can be sure that EU law is only directly effective and applicable
in national law because of the European Communities Act 1972.
Thank you very much. In the UK, the European Communities Act,
in accord with the traditional dualist position, is the foundation
for any reception of any EU law within our national legal order.
So the bottom line is that if the European Communities Act of
'72 had never been enacted, we would never have been part of the
EEC, as it then was, or the EU, as it is now, and in that sense
no EU law would be part of our constitutional legal order. Okay?
That is stage one of the reasoning.
However, it also has to be recognised that when
we signed the European Communities Actand the framers of
the European Communities Act in 1972 were fully cognisant of thisit
was recognised that parts of EU law were regarded as either directly
applicable, or directly effective. That meant that, certainly
in terms of the phrase "directly applicable," what this
connotes as a term of art in EU law is that a regulation, once
made, is effective within each national legal order without more.
If you want a metaphor, that means that once
it is made in, or by, the EU, it parachutes automatically into
27 legal systems at the same time, without the need for any separate
Act of national incorporation or legislation in the national order.
When we signed the European Communities Act, that was already
fully clear, and section 2(1) expressly makes provision for that.
So, yes; the European Communities Act is the
foundation for us becoming part of the EU and for EU law to become
part of national law. However, it has never been the case that
there is a need for a separate Act of a UK Parliament, either
primary or secondary, in order to validate and legitimate the
reception of each regulation of EU law into national law. That
has never been the case and indeed, if we were to take that position,
we would, as I intimated in the paper, be in persistent and systematic
breach of EU law.
Nor, I should say, is there any need, pursuant
to the European Communities Act, for every directly effective
normwhether treaty, article, regulation, decision or directiveof
EU law to be separately legitimated by an Act of Parliament or
statutory instrument in the UK. We have never taken that position,
and the European Communities Act does not mandate that position.
Once again, if we were to take that position, or if clause 18
were to be read in that way, it would be contrary to EU law.
How do you think the debate between the absolute legislative supremacy
of Parliament on the one hand, and parliamentary sovereignty being
a construct of the common law controlled by judges on the other,
should be resolved? The second part of my question is: who do
you think should resolve it, Parliament or the Supreme Court?
In other words, where do you think ultimate authority now rests
in our constitution?
a very good question; thank you very much indeed. That is a question
on which one could have an academic seminar going on for a considerable
period of time. Both parts of the question are linked, so I will
treat them together.
The traditional theory of sovereignty under
which Parliament can do anything it wishes, procedurally or substantively,
save for one limitationthat it cannot bind its successorsis
a construct ultimately of the common law. It can also be regarded
as the ultimate legal principle or the Grundnorm at the top of
the system, in the sense that it is the principle to which all
other principles can be traced and nothing can go back further
beyond it. That is why it is often said in the literature that
the ultimate legal principle is ultimately based on social acceptance
and not anything further than that. Ultimate social acceptance
means ultimate acceptance by the players in the game, which include
the courts and Parliament.
If a statute were to affirm the principle of
parliamentary sovereignty in the manner in which I have just set
it out, meaning that Parliament is sovereignit can do anything
it likes substantively or procedurally, save that it cannot bind
its successorsthe logical point that would be jumped on
by lawyers, constitutional lawyers and the like is that the Parliament
would be founding or basing itself on a principle that is logically
prior to it.
In other words, the very idea that statutes
are the ultimate source of law, and that Parliament can do anything
it likes except bind its successors, is in a sense logically prior
to any particular statute. So a statute might wish or try to affirm
that principle, but it would not be constitutive of that principle;
it would simply be declaratory of it. It could not be regarded
as constitutive of it.
If you had a situation in which that principle
were ever testedlet's take an example. It could be in the
EU context or it might not be in the EU context, but let's just
take an example to sharpen this up so that we see it. You might
get a situation, although we hope it never happens, in which a
ParliamentI'm sure not this onemight pass a piece
of legislation that is regarded as fundamentally violative of
human rights. It is challenged under the Human Rights Act 1998,
and the court issues a declaration of incompatibility. Parliament
does not accept it; Parliament does not have to accept it under
the Human Rights Act.
The issue then becomes what the court should
do. Under the traditional precept of parliamentary sovereignty,
the court might back off and say that Parliament has done what
it is entitled to do under the Human Rights Act, and it has decided
in those circumstances to exercise its ultimate sovereign power.
It is not beyond peradventure that in those circumstances the
courts might say, depending on the nature of the legislation that
had been affirmed by Parliament, "I'm sorry, we are not going
to recognise or apply that." Certain dicta by the courts
over time have suggested that. If you had a situation such as
that, you would have a stand-off between the courts and Parliament,
and which way it was resolved would depend to some extent on who
caved in first.
Can I jump in there and remind you of the article you wrote in
"The Changing Constitution" in 2007? In that, you said
that your preferred view, relating to the court's jurisprudence,
is to regard decisions about supremacy as being, "derived
from normative arguments of legal principle, the content of which
can and will vary across time".
You went on to say that you agree with Professor
Allan of Cambridge university, who is coming to see us this week.
You go on to say, "On this view there is no a priori inexorable
reason why Parliament merely because of its very existence must
be regarded as legally omnipotent."
I wonder why that did not appear in the evidence
we got today. Would you like to enlarge on that? Because if Allan
agrees with you, and you agree with him on this, it raises an
important question about parliamentary supremacy.
you. It is always chastening to have one's own views quoted back
at oneself in such circumstances. I haven't changed my mind over
that and I stick by it. To make it clear, I haven't raised that
issue in response to any of the questions, becauseperhaps
it was my mistakeI hadn't fully realised that any of the
questions directly addressed that issue. I haven't changed my
mind about that issue at all.
If I could amplify what I meant by that, it
is worth doing so in two different respects. One: in terms of
principle, all power requires justification. The more power you
want, the better the justification has to be. That is the simple
foundation for the quote that you read. The idea that an institution,
merely because of its existence, demands or warrants omniscient
powers has always seemed to me a strange one. There has to be
a normative argument to justify that ascription of power. There
may be various normative arguments that you can put, but then
the terrain of the argument becomes precisely thatthe normative
argument. It is not just because Parliament has passed a statute,
but because, for example, one believesthis would be the
sketch of the modern normative argumentthat because Parliament
has been elected on an extended and full franchise for nearly
100 years, because of that electoral mandate, that is the conceptual
foundation for the unlimited sovereign power. You might also argue
that if any institution, such as the court, tried to limit that
power, that institution would have a lesser legitimacy than Parliament
itself. Therefore, there should be no such limits. That would
be the kind of argument.
There are many counter-arguments that you can
put to them. All I meant in that quotation was my fundamental
starting point: power requires justification. The greater the
power you as a person or institution want, the better the justification
had better be.
The second part, which is linked, is that in
historical terms, the very idea, legally or historically, that
Parliament was omniscientomnipotent not omniscient
CHAIR: Not "omniscient".
Freudian slip. The very idea that Parliament was omnipotent in
the way that is taken in the current formulation of the supremacy
principle, was not historically necessarily taken for granted
and, in so far as defences or arguments were put to justify that
position, they were put in terms of principle. That has largely
been forgotten in some of the more modern scholarship. For example,
if you look at the great constitutional writers from previous
generations; if you look at Blackstone or Dicey, they didn't have
cases or case law on which to justify the notion of parliamentary
supremacy. They justified parliamentary supremacy, albeit on differing
arguments of normative principle, which they felt justified the
conclusion that Parliament was, and indeed should be, omnipotent.
For example, there is Blackstone's famous quoteeveryone
knows Blackstone's famous quote, but nobody reads the 25 pages
that come before it. Blackstone makes it absolutely crystal clearthis
is not Craig reading something into itthat his conclusion,
that Parliament is indeed omnipotent, is dependent upon Parliament
working on and in the way in which he has argued in the previous
25 pages. That is very interesting, because in those previous
25 pages he describes a Parliament in which you have kings, Lords
and Commons working on a principle of institutional balance so
that the three different constituent parts of Parliamentkings,
Lords and Commonscounterbalance each other in terms of
power and authority. Blackstone went out of his way to make it
expressly clear, once again, that if one constituent part of that
legislature became dominant over the other two, it might be very
dangerous and lead to an element of tyranny.
CHAIR: Of course,
in the 1620s Coke himself was removed by Parliament for daring
to suggest that the courts had supremacy over Parliament.
CONNARTY: We are going back into
some of my worst nightmares when I studied government and political
systems. That was very interesting, but I would like to go back
to the practicalities of what we are looking at today, because
it is very important for us to take evidence that is relevant
to the advice that we give to the Bill Committee.
You say in your evidence that, "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." Will clause 18 change
the way that the courts interpret their duty to review legislation
in the light of EU law under the European Communities Act 1972?
Secondly, you go on to say that, "Whatever meaning is given
to Clause 18 will apply to future Acts of Parliament unless there
is something express to indicate the contrary." If clause
18 does not effect any changehowever one interprets "whatever
meaning"does it have a symbolic value? If so, what
is that value?
you very much indeed for the questions. On any plausible reading,
clause 18 cannot, in my view, be regarded as a primacy clause
in the sense that it cannot be read as purporting to determine
primacy between EU law and UK law in the event of a clash.
CONNARTY: So the answer to that
CRAIG: It is
not a primacy clause and, in paragraph 1.09, the explanatory memorandum
expressly disavows the idea that it is a primacy clause. In fact,
paragraph 1.09 expressly states that in the view of the Bill's
framers, nothing in clause 18 will affect the pre-existing law
on primacy. So my answer to your first point is no, it is not
a primacy clause; and my answer to your second point is yes, it
has a symbolic importance in affirming that in the absence of
any national law, EU law cannot apply in the UK. As I mentioned
on page 1, there are only two conceivable situations that I can
imagine in which that could happen. You are absolutely right to
say that we should focus on practicalities and not on abstract
theory, but that is what I was trying to do in answering those
questions. I can only think of two situations in which that symbolic
issue would be a practical reality. One is that we completely
repeal the ECA in preparation for exit under Article 50 of the
TEU, but there is a gap between the two. There may well be a gap,
because, if you read Article 50 of the TEU, it is quite clear
that it may take two years to negotiate exit, so there may be
a real gap of time. In those circumstances, you might have a situation
in which someone wants to argue that EU law continues to operate
in the interim, but if there is no ECA, there wouldn't be any
statutory basis for EU law to apply in the UK at that time.
The other scenario that I thought ofI
couldn't think of any otheris, falling short of that where
this symbolic clause might be of practical importance, in the
situation where we stay in, but we attempt to derogate. If we
attempt to derogateby derogate I mean to pass an Act that
says expressly and unequivocally that in the EU Act of 2014, the
UK expressly and unequivocally states that it is not going to
follow directive xyz of the year 2013, and it expressly excludes
the ECA as wellin those circumstances you could have a
situation in which, although undoubtedly in breach of EU law,
we would be within the EU, but in terms of that subject matter
area, there would be no foundation in national law for EU law
to apply in that area.
Those are the only two practical circumstances
I can see in which the symbolic value would have had practical
CONNARTY: Would you say that it
would likely be a dilemma, because, in my judgment, two no's would
mean that it was not necessary? We all know this; it's just a
re-statement. Is it necessary? How would it become sufficient
if we were to advise the Bill Committee to make it so? How would
we make it sufficient to become a sovereignty clause?
CRAIG: Can I
take the second part of that first? I think the second part actually,
in many ways, answers the first part.
It depends what you mean by a true sovereignty
clause. I have to ask you a question back. Do you mean a sovereignty
clause as primacy, or do you mean a sovereignty clause that simply
affirms or asserts the idea that Parliament can do whatever it
wishes in substance and in form, save that it cannot bind its
If I could just have 30 seconds, it seems to
me that when I was reading this and the explanatory memorandum
and the questions posed, people are talking about a sovereignty
clause here, and actually it seems to me that the very idea of
sovereignty clause can have more than one meaning. I think there
is a danger of eliding the different meanings that the term sovereignty
clause can bear. One can disaggregate at least three different
senses in which one might use the term sovereignty clause.
The parent sovereignty clausethe mother
or father of all sovereignty clauses if you wish to put it in
that wayis the idea that Parliament can do anything it
wishes in substantive and formal terms, save that it cannot bind
its successors. That is a traditional parent sovereignty clause.
The sovereignty clause that we have in clause
18 is what I call sovereignty as dualism. It is simply affirming
the idea that Parliament is sovereign in the sense that no treaty
that is negotiated by the Executive can take effect within the
UK unless and until it has been transformed or adopted by an Act
of Parliament. But that is sovereignty as dualism. You can call
it a sovereignty clause, but it is different from the parent idea
A third sense of sovereignty is sovereignty
as primacy. In my view, clause 18 is sovereignty as dualism. It
says nothing about sovereignty as primacy, and it doesn't purport
to reiterate, or iterate, the parent idea of sovereignty. There
is no harm in having clause 18 if you wish it as a symbolic reaffirmation
of the common law principleit is a common law principlethat
a statute has no impact in the United Kingdom unless or until
it is embodied in an Act of Parliament.
That is a perfect answer. Thank you.
Q12 MR CLAPPISON:
Thank you for those answers and please forgive me if my question
is a little imprecise. Michael Connarty asked you in broad terms
whether this made a difference and you said only in two respects:
if the United Kingdom were to exit from European Union or if it
were to seek to derogate from a particular piece of legislation,
neither of which the Government tell us they intend to do. If
it is only in those circumstances that it would make a difference,
is your evidence to us that otherwise it would make no difference?
CRAIG: My evidence
is that otherwise it would make no difference.
PHILLIPS: The unsuccessful argument
urged on the Court of Appeal in the metric martyrs case was essentially
that EU law had become entrenched rather than merely incorporated.
That argument has been disposed of in the Court of Appeal but
it is an argument with which it would be open to an appellant
to argue in the Supreme Court, wouldn't it?
PHILLIPS: And it is an argument
which purports to be addressed by clause 18 of the Bill.
CRAIG: On the
first part of the question, I think the answer is undoubtedly
yes. 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 Courtso, 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 notI think they would affirm
the same reasoning in ThoburnI don't think it would be
markedly affected by the existence of clause 18. I do not think
that clause 18 in and of itself necessarily provides an answer
to the arguments that were litigated and discussed in Thoburn.
I think it would lend support to the view taken by Lord Justice
Laws, but I do not think the existence of clause 18 would necessarily
preclude somebody running the same argument that Eleanor Sharpston
ran in the metric martyrs case. She was the person who was arguing
foras you put itthe entrenchment view.
PHILLIPS: In order to run that
argument in the Court of Appeal or the Supreme Court and to say
that Lord Justice Laws was wrong in the divisional court, would
you also have to say that clause 18 of the Bill, were it to become
law, should essentially be struck down or seen as having no effect?
CRAIG: No. That
was the point I was going to go on to. That is a very interesting
question. I am not sure that that is right; it could be taken
in that way, but it would not have to be for the following reason.
You can read clause 18 as simply saying, "This is the basis
of reception of EU law into national law." There has to be
a national statute through which EU law is recognised and available
in national law. Okay? Now, there is a real conceptual distinction
between the basis on which EU law or, indeed, any Treaty becomes
part of national lawthat's point oneand point two:
what is the primacy or hierarchy of EU law and national law once
we are in the system? Okay? So even if clause 18 is there, somebody
might well say, if a case went to the Supreme Court or the Court
of Appeal: fine; clause 18 affirms or reaffirms what I called
in my paper, for want of a better purpose, the principle of sovereignty
or supremacy as dualismthat the reception of EU law was
dependent upon the existence of the statute at UK level. But that
is conceptually distinct in and of itself from the question about
how, once we are in the EU, primacy operates, and whether indeed
primacy could be accepted on the basis of the kind of reasoning
put forward by the European Court of Justice in Costa and Van
Gend en Loos.
CHAIR: May I
invite you, Stephen, to take on the next questions relating to
Parliament passing an Act?
PHILLIPS: Yes. I think we will
take them separately, because the first one is quite long. Were
it to be the case that Parliament passed an Act that revoked or
amended the European Communities Act and withdrew the United Kingdom
from the European Unionor partcould it be argued,
on the basis of the obiter observations of at least three of their
lordships in the case of Jackson, that the court should disapply
the revoking or amending Act?
CRAIG: If Parliament
expressly and unequivocally revoked the ECAthe entire ECAwith
the intent of exiting the EU, and if that was done expressly and
unequivocally, I believe that the courts would accept it. I would
think that the courts would say that ultimately the political
decision must be for Parliament to take, and that if Parliament
has considered the matter, deliberated on it and made it absolutely
clear that it wishes to leave the EU, with the consequence that
the ECA should be repealed or revoked, that would be a valid statute.
It would be recognised and applied by the UK courts, even more
so post-Lisbon than prior, because at least post-Lisbon there
is now an express exit clause in Article 50 of the TFEU, which
was not there before.
Can I ask a question about the amendment that Stephen referred
to? The revocation or the repeal is one thing; the question of
an amendment is another. After all, in McCarthys and Smith,
andwith DiplockGarland and British Rail,
we have clear statements that refer not only to revocation but
to amendment. Is it not therefore necessary to answer that question
about any provision of the European Communities Act, or indeed
any provision that arises by virtue of that Act?
CRAIG: An amendment
of the European Communities Act falling short of revocation
That is one, indeed. The other is any provision that arises by
virtue of the application of the European Communities Actin
other words, subsidiary legislation, which may be in an Act of
CRAIG: Can I
take those in turn? To take the bigger one firstwere an
Act of Parliament to amend the European Communities Act. It is
difficult to be concrete without a concrete example. Let us take
as a hypothesis that it amends the European Communities Act by
taking out section 2(1) or section 3(1). In such circumstances,
and in determining the legal effects of that Act, in analytical
terms one has to disaggregate two different issues. First, has
it done so expressly and unequivocally? If it has not done so,
I think the court would reject the amendment, as it were, on that
ground. Parliament would have to do it expressly and unequivocally.
The second part would be as follows: the question
would be, depending on what had been amended, whether the European
Communities Actthe rump of it, or the remainder of itcould
remain as a coherent statute. That would be a question for a court
to determine. Even if there had been an express amendment taking
out section 2(1) or section 3(1), or altering section 2(4) or
section 2(2), you would then get a consequential question arising:
is the rumpwhat's leftof the European Communities
Act a coherent statute? That would be "coherent" in
the legal sense that it provides the foundation for us remaining
in the EU, notwithstanding the part that had been taken out or
Q19 MR CLAPPISON:
Following on from that and in search of something that might make
a difference in safeguarding parliamentary sovereignty, if you
were to set about drafting a clause that made a difference, how
would you go about it? May I ask about one suggestion on this?
Thinking aloud here, which is probably a dangerous thing to do,
what about a clause catering for the possibility, which you have
just raised in your evidence, of Parliament expressly stating
in a statute that it is overriding a particular piece of European
legislation? Catering for that possibility, what about saying
that Parliament may do that in respect of a particular piece of
legislation coming from Europe?
CRAIG: My own
view on that is that it would be perfectly possible to draft a
clause to that effect. I don't think that it would be particularly
difficult linguistically for skilled draftsmen to put down on
paper a modified form of clause 18 to that effect.
Do I think that it would be desirable, legally
or politically? If I might proffer an opinion in that respect,
my view would be no. I think it would be a red rag to Brussels.
A clause that allowed the UK Parliament, when it wished to do
so, to derogate from a particular part of EU law while remaining
within the EU would, per se, be regarded as a violation of EU
lawabsolutely no doubt about itby the European Court
of Justice, the Commission and the other EU institutions.
The other thing to bear in mindI entirely
respect people's differences of view, and I can see that other
people might legitimately take a different view from the one I
have just takenis that if we were to do this in a particular
statute, that would mean that one believes that anybody else should
be able to do it in their own domestic statutes, too. To the 27
member states, in terms of, as it were, normative equality, we
would be saying, "We can do this and, therefore, you should
be able to do this as well." Okay? Whether that would, overall,
enhance the viability of the EU or cause it to collapse is a question
that has to be put on the table.
CHAIR: On the
point about the red rag, perhaps I could leave that one and thank
you very much for coming, Professor Craig. It was extremely interesting.
Thank you very much indeed.
London School of Economics, gave evidence.
Professor Hartley, thank you very much indeed for coming to see
us this afternoon. I think that the best way to proceed is by
asking the questions that we have already been through with Professor
Craig and to get your view on them as well.
First, what is the status of Declaration 17
on the primacy of EU law? Is it to be regarded as politically
or legally binding on the member states, or both? In that context,
do you believe that Declaration 17 can bind the Supreme Court
of the United Kingdom or, alternatively, be used by it as an aid
17 simply states the position under European Union law. It does
not state the position under British law. So if the question is,
"Under the British constitution, does EU law prevail?",
I don't think Declaration 17 would bind the Supreme Court. It
is simply a statement that, according to EU law, EU law prevails;
and it doesn't answer the further question.
HOPKINS: Should clause 18 of the
European Union Bill refer to section 3(1) of the European Communities
Act 1972 as well as section 2(1)?
HARTLEY: I think
the same as Professor Craig about that. I think it simply lays
down a principle that EU law is applicable in the United Kingdom
solely because Parliament says so. The reference to section 2(1)
is simply a reference to what is meant by EU law. It says "rights,
powers, liabilities, obligations, restrictions, remedies and procedures".
All that is just a way of saying EU law, but section 2(1) uses
those terms, so it's just a way of defining EU law. I don't think
it means anything more than that.
HOPKINS: I think you've possibly
answered this, in a way, but what weight do you think the Court
of Justice of the European Union would attach to clause 18?
HARTLEY: I don't
think the Court of Justice would attach any weight, really. It
has its view; we have our viewby "we" I mean
the United Kingdomand I don't think it would consider that
clause 18 affects the position in European Union law. It wouldn't
concern itselfor it might concern itself, but it's got
no power to decidewith what the position is in British
Should we care what the European Court of Justice feels about
in a sense, yes, but the Court of Justice has no power to decide
what British law is or what the British constitution is, so it
can't affect that. It can say what European Union law isand
I think we do care what European Union law isbut still
it can't basically affect the position of Parliament in British
MORDAUNT: Has the question of
whether EU law has supremacy over the constitutional doctrine
of parliamentary sovereignty been finally resolved by the decision
of the divisional court in Thoburn?
it's been finally resolved as far as that court is concerned.
Obviously, a higher court could take a different view, but I
agree with Professor Craig that 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.
Could I ask why not, Professor Hartley? Why do you think that
the House of Lordsor the Supreme Courtwould not
take a different view from that in Thoburn?
I think the Thoburn principle is that the position of European
Union law in the UK and the sovereignty of the British Parliament
ultimately depend on British law. I think that's entirely in
accordance with constitutional traditions and thinking in Britain,
and therefore I think it would be rather surprising if the Supreme
Court took a different view.
PHILLIPS: I agree with you, and
I think the Chair does as well, that the decision in Thoburn is
rightso all three of us are in agreementbut by the
same token the argument advanced on behalf of Sunderland city
council was not said to be unarguable, from which it follows that
a different view could be taken by either the Court of Appeal
or the Supreme Court in relation to that argument.
I think it all depends on where you start your argument from.
I think it all depends on where you start your argument from.
Let's say that you start your argument from the British constitution;
that is your starting point. Paul Craig used the word "Grundnorm"the
fundamental principle on which everything else depends. If your
fundamental principle is that the British constitution is supreme
law, the Thoburn argument, logically, must follow. If you take
as your fundamental principle that the Treaty of Lisbon is supreme
law in Britain, you get a different result. The question of what
is your fundamental principle is not really a legal question,
because it's a question that forms the basis of law and therefore
it depends more on history, politics and all kinds of things.
These things can change, and if you look at
the British constitution, they have changed. The civil war brought
about changes. The so-called glorious revolution brought about
changes. 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 courtsthe
UK courtstake a different view from the view they've taken
MORDAUNT: Can we be sure that
EU law is directly effective and applicable in national law only
because of the European Communities Act?
it is. I would take the view that the fundamental principle is
parliamentary sovereignty and that under the British constitution
a treaty can have no effect in British law unless Parliament passes
legislation to give it effect. The European Community law is no
more than a treaty and other things that are based on that treaty,
so the whole system rests on a treaty foundation and that whole
system can have no effect in Britain unless Parliament passes
a law to say it has effect. Therefore, the European Communities
Act as amended lets that EU law into our law. Its effect is dependent
on that. If you took away the European Communities Actif
you repealed itEU law would immediately cease to have effect
In a way, you've described the European Communities Act as a gateway
by which we allow, on an individual basis up to nowup to
Lisbondifferent laws in different parts of the economy
or trade or competition or whatever it might be, to come through,
but did not Lisbon change that fundamental principle with the
advent of the passerelle clause?
when you say "on an individual basis", I think you mean
on the individual basis of treaty by treaty, because obviously
the treaties, going right back to the original EEC Treaty, said
not only that this treaty was law, but that regulations passed
under the treaty were law. We have one Act of Parliament that
covers the treaty, or the treatiesbecause there have always
been several of themplus the regulations, both past and
future, so we have one measure for all those things. We then opened
the gateway for those things.
Obviously, if you have a new treaty, you have
to have a new Act of Parliament. You could have a provision in
British law saying that under certain conditions, future treaties
would be included in this, but the fact remains that they have
effect in Britain because a British Act of Parliament says so
and for no other reason. As far as I know, that's exactly the
position in all the other member states. They have different constitutions
and different requirements, but in Germany, Poland, Denmark or
any country that you want to mention, the fundamental proposition
is that EU law applies in our country because our constitution
The constitution may say so in different terms.
It may even say that EU law prevails over the constitution to
a certain extent, which is what the German one doesnot
completely, but to a certain extentand it may say that
future treaties, provided they fulfil certain requirements, will
also have effect. But all that is dependent on the constitution
in Germany, and in Britain on an Act of Parliament.
The reason I ask is that in Lisbon, as was mentioned earlier,
it's the first time that in the treaties, there's been an exit
clause. But why would you need an exit clause if you already have
a gateway that you opened at the very start of this process?
far as British law is concerned, you don't need an exit clause.
We were always free to leave, as far as British law is concerned,
and we're still free to leave, if we wanted to leave, without
going through the process laid down. As far as this country is
concerned, we could leave, and the British courts would accept
that. So the exit clause in Lisbon, which, as you say, is new,
is not really necessary as far as we're concerned. I think they
thought it made the system neater to allow people to leave, but
it's always been possible to leave.
In fact, in a way, one country has left, and
that's Greenland. Greenland was part of Denmark, in a sense, but
it had eternal self-government. It decided to leave, and left.
They actually negotiated their exit, so it's not really a very
strong assertion of national sovereignty, because Denmark remained
in the Union and Greenland left, but still, it was a precedent
for part of a country leavingor a semi-country, or whatever
you want to call it. So my answer is that, strictly speaking,
the exit clause is and was not necessary, but they thought it
would perhaps reassure people.
CHAIR: In that
context, Stephen Phillips, would you be kind enough to ask the
questions that you had in mind?
PHILLIPS: With regard to the answer
that you've just given, were Parliament to pass an Act that either
revoked or amended the European Communities Act 1972 and withdrew
from the UK or from part of our treaty obligations, could it be
argued, in your view, on the basis of the obiter observations
of at least three of their lordships in the Jackson case, that
the court should disapply that revocation or that amending statute?
in my opinion, 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.
CONNARTY: Thank you. It is nice
to see you, Professor Hartley. My interest is in the practicalities
of the Bill before us. The idea of this is that we will give advice
to the House, presumably when the Bill Committee is sitting as
a constitutional Committee. Clause 18 has been touted as a sovereignty
clause, a re-statement of sovereignty. Will clause 18 change the
way the courts interpret the duty to review legislation in the
light of EU law under the European Communities Act 1972? Will
clause 18 do that? If it does not effect any change, does it have
a symbolic value? If so, what is it?
In my opinion, even before we had clause 18, Parliament was still
sovereign. Clause 18 simply restates what I and many people regard
as the position before clause 18. It simply reaffirms what existed
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.
CONNARTY: We have heard evidence
on the question of what a sovereignty clause would really be.
A sovereignty clause would restate duality; we seem to have been
told, "This is what this does." Sovereignty would be
absoluteParliament could decide to do anything that it
wishesor the sovereignty clause would describe the primacy
of UK law. Does this in fact describe primacy or just restate
simply restates who decides the question of primacy, and how.
Ultimate primacy lies with UK law, but UK law canand, in
the European Communities Act 1972, didsay that EU law is
to have primacy. Obviously, that can be changed in the future,
so, in that sense, it is not a primacy clause.
CONNARTY: It does not take back
reaffirms who decides on primacy, and the answer is that Parliament
decides. It does not itself say what happens, because that has
already been specified in the 1972 Act.
is a very good moment to bring in Jacob Rees-Mogg. I know that
he would like to ask a number of questions.
On the issue of parliamentary sovereignty, I wonder whether you
think that the classic understanding of parliamentary sovereignty
is still valid, or whether the courts have a greater role within
that, and whether that will be decided by Parliament or by the
courts themselves? As a final point to that, I wonder whether
you think the Supreme Court moving out of Parliament has made
any difference to our understanding of parliamentary sovereignty.
the last question, in my opinion, it has made no difference. It
is just a change of venue.
On the earlier questions, as I said before,
parliamentary sovereignty is the fundamental principle of the
UK legal system and the UK constitutional system, and, because
it is a fundamental principle, it does not rest on any other legal
principle. In other words, if you park your car where you should
not park it, and they give you a ticket and you go to court, you
might say, "I don't accept that this law is valid."
They would say, "It is valid because Westminster city council"or
whoever it is"says so." If you say, "What
right do they have to pass laws?", they would say that some
Act of Parliament says so. If you then said, "What right
does Parliament have to pass laws?", they would say, "It
is a fundamental principle." Everything is based on something
else, but when you come to the final principle, it is not based
on any other legal principle.
Why is that final principle valid? In my opinion,
it is valid as a matter of history, politics, power and whatever
else you want to say, and that is the present position. Perhaps
it will change in the future, if there were a war or revolution.
These things can change, and they have changed in the past. In
a way, asking whether it is the courts or Parliament is not quite
the right question. The courts might say something, but, in my
opinion, they would still accept parliamentary sovereignty. The
courts could give a view, Parliament could give a view, and various
other people could give views. In a way, the final outcome would
depend on politics. Can the one lot force their view on the other
lot? That is basically what it is.
Certainly, if you look at Commonwealth
countries you can see examples of judges being arrested and thrown
into prison, and the army marching in and doing this and that.
There have actually been cases in which there has been a coup
d'état in Pakistan or various other places and the courts
have had to decide if they recognise the new order. Some of them
have said, "Yes, we do recognise it, because this is the
new reality". So it's not really a legal question.
Is it not a democratic question?
You said politics, but actually it is democracy, is it not? Some
would argue that the real reason why it should be Parliament rather
than the Supreme Court would be because it is Parliament, on behalf
of the voters, that is making decisions and that that is the reason
why parliamentary sovereignty has a special status.
that is certainly one argument, but you could put other arguments.
If you look at, say, what happened in Ireland or in the United
States when there has been a new constitution, I think that the
ultimate question is simply whether that new constitution has
been accepted. I can go into that, if you want.
If you take Ireland, Britain passed a statute
saying, "Ireland is independent and this is the constitution".
So we took the view that the Irish constitution is valid because
the British Parliament said so. The Irish did not agree with that.
When they brought in a new constitutionI cannot remember
the exact datethey deliberately created a legal break.
They simply had a referendum and proclaimed a new constitution,
but they did not adopt it in terms of the old constitution, so
nobody could say that the new constitution somehow owed its validity
to what Britain had done. That was done on purpose and I think
India did it as well, when it became independent.
So you can simply ask the question, "Why
is the constitution valid?" The answer is, "Well, it's
because people accept it". That is all you can say, I think.
HOPKINS: On that last point, it
is a case of saying, "We took our freedomit wasn't
given to us".
HOPKINS: Is there a danger of
limiting clause 18 to the scope of EU law and would a clause of
general application in a separate Act provide better protection
for the principle of parliamentary sovereignty?
Are you asking would it be better if clause 18 was put in a separate
HOPKINS: Wellif there was
a more general application. Is there a danger of limiting clause
18 to the scope of EU law and having it too narrow, in other words?
18 clearly is concerned with EU law. Clause 18 says that it is
only by virtue of an Act of Parliament that EU law is applicable
in the UK. So clause 18 is concerned only with EU law.
Maybe I have misunderstood your question.
HOPKINS: Well, it is just a question
of making it more general, in the sense of having a wider application.
HARTLEY: I don't
think that it could be wider in the EU sense. But you might want
to have a clause that says that no lawnot only EU law,
but the European convention on human rights, the UN, anythingshould
apply in England, or does apply in the UK except because Parliament
says so. You might want that. But clause 18 is concerned solely
with EU law.
As I said before, I think that the position
is the same as beforeI don't think that it changes the
HOPKINS: I have a personal question,
Chair. I wonder whether I might ask it.
CHAIR: Of course.
I wanted to ask about the European Court of Justice. We think
of courts as being separate from politics and the independent
judiciary is something that we regard as very important. However,
the ECJ has made some judgments that have been seen to be political,
particularly the Viking judgment and one or two other judgments
relating to trade unionists and trade union rights. Those rights
are apparently enshrined in the European Union constitution, but
the ECJ has made some judgments in favour of employers and against
trade unions. In a sense, that diminishes the sense of independence
of the ECJ and the sense of it being a court of law rather than
a political institution.
HARTLEY: I think
that the ECJ is independent, but that doesn't mean that it's not
political. Some of its judgments are influenced by political considerations,
but in a way it's hard to avoid that, depending on the circumstances.
In many instances, a judge has his own views as to what is right
and wrong, or what's good or bad, and that could beand
is in some casesinfluenced by politics. That shows through
in the judgments. My answer would be that the ECJ is in one sense
political, but I'm not sure that it's impossible to be completely
One last question, Professor Hartley. Do you think that there's
a legitimate concern that the European Union Bill, in proposing
a system of referendum locks, is limiting the sovereignty of future
Parliaments to enact legislation on the EU?
HARTLEY: I don't
think so, because the 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 ittotally repeal itor 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
doesthe original one.
PHILLIPS: May I test your argument?
Could the Statute of Westminster be repealed by this Parliament?
PHILLIPS: What would the effect
of that be, both in this country and, for example, in one of those
territories formerly regarded as a British dominion?
far as this country is concerned, it would then cease to have
effect. That would mean, in theory, that the British Parliament
could legislate for Canada or Australia.
As far as Canada is concerned, or Australia,
it probably would not have any effect. The Canadians would take
the view that, at some point, they'd cut that link with the British
Parliament. The Irishwe spoke about this beforedeliberately
broke the chain of continuity between the British Parliament and
their constitution, precisely to prevent anything like from this
happening. The Canadians did not do that, nor did the Australians
and New Zealanders, but I think that their courts would probably
take the view that the passage of time has changed things and
has therefore established a new fundamental principle in Canadalet
us take that as an examplethat the Canadian constitution
is supreme and Westminster no longer has the power to legislate
CHAIR: I finish
by saying that I ought to declare an interest in that because
I was the legal adviser to Quebec during the Canadian repatriation
proposals in the early 1980s.
We are extremely grateful to you for giving
such clear answers to these questions. Thank you very much indeed.
you for inviting me.
1 Lord Justice Laws is no longer
to give evidence. Back