The EU Bill and Parliamentary sovereignty - European Scrutiny Committee Contents



EXAMINATION OF WITNESS (QUESTION NUMBERS 1-44)

PROFESSOR PAUL CRAIG

22 NOVEMBER 2010

  Q1  CHAIR: Welcome to the Committee.

  PROFESSOR CRAIG: Thank you very much for inviting me.

  Q2  CHAIR: 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 sovereignty.

  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 refused—unreasonably, in our view—to 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, Professor—it'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?

  PROFESSOR CRAIG: Thank 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 supremacy—or primacy—of 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 UK.

  CHAIR: Thank you very much indeed for that answer. Kelvin Hopkins has the next question.

  Q3  KELVIN 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?

  PROFESSOR CRAIG: Thank 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 clause—see 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 its absence.

  CHAIR: That is very clear. Thank you very much. Would Penny Mordaunt like to ask the next two questions?

  Q4  PENNY 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?

  PROFESSOR CRAIG: Thank 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.

  Q5  CHAIR: Lord Justice Laws is coming to this Committee, so he will be able to give his own view of things.[1]

  PROFESSOR CRAIG: I have the greatest respect for Lord Justice Laws.

  On the first question, my reading of Thoburn—I don't think this at all unorthodox or heterodox—is 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 court—perfectly consistently with the reasoning of Lord Justice Laws in the Thoburn case—might 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 case—indeed 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 which—subject to the possibility of an express Act of Parliament stating the contrary—in 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?

  Q6  PENNY 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.

  PROFESSOR CRAIG: Okay. 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 Act—and the framers of the European Communities Act in 1972 were fully cognisant of this—it 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 norm—whether treaty, article, regulation, decision or directive—of 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.

  Q7  JACOB REES-MOGG: 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?

  PROFESSOR CRAIG: Again, 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 limitation—that it cannot bind its successors—is 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 sovereign—it can do anything it likes substantively or procedurally, save that it cannot bind its successors—the 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 tested—let'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 Parliament—I'm sure not this one—might 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.

  Q8  CHAIR: 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.

  PROFESSOR CRAIG: Thank 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, because—perhaps it was my mistake—I 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 that—the normative argument. It is not just because Parliament has passed a statute, but because, for example, one believes—this would be the sketch of the modern normative argument—that 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 omniscient—omnipotent not omniscient—

  CHAIR: Not "omniscient".

  PROFESSOR CRAIG: Sorry, 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 quote—everyone knows Blackstone's famous quote, but nobody reads the 25 pages that come before it. Blackstone makes it absolutely crystal clear—this is not Craig reading something into it—that 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 Parliament—kings, Lords and Commons—counterbalance 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.

  Q9  MICHAEL 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 change—however one interprets "whatever meaning"—does it have a symbolic value? If so, what is that value?

  PROFESSOR CRAIG: Thank 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.

  Q10  MICHAEL CONNARTY: So the answer to that is no?

  PROFESSOR 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 of—I couldn't think of any other—is, 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 derogate—by 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 well—in 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 importance.

  Q11  MICHAEL 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?

  PROFESSOR 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 successors?

  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 clause—the mother or father of all sovereignty clauses if you wish to put it in that way—is 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 of sovereignty.

  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 principle—it is a common law principle—that a statute has no impact in the United Kingdom unless or until it is embodied in an Act of Parliament.

  MICHAEL CONNARTY: 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?

  PROFESSOR CRAIG: My evidence is that otherwise it would make no difference.

  Q13  STEPHEN 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?

  PROFESSOR CRAIG: Correct.

  Q14  STEPHEN PHILLIPS: And it is an argument which purports to be addressed by clause 18 of the Bill.

  PROFESSOR 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 Court—so, undoubtedly, yes. On the argument of the substance of the point, one would, of course, be hypothesising as to whether the Court of Appeal or the Supreme Court would be likely to overturn the reason. But, my own view is whether they did so or not—I think they would affirm the same reasoning in Thoburn—I 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 for—as you put it—the entrenchment view.

  Q15  STEPHEN 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?

  PROFESSOR 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 law—that's point one—and 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 dualism—that 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?

  Q16  STEPHEN 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 Union—or part—could 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?

  PROFESSOR CRAIG: If Parliament expressly and unequivocally revoked the ECA—the entire ECA—with 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.

  Q17  CHAIR: 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, and—with Diplock—Garland 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?

  PROFESSOR CRAIG: An amendment of the European Communities Act falling short of revocation—

  Q18  CHAIR: That is one, indeed. The other is any provision that arises by virtue of the application of the European Communities Act—in other words, subsidiary legislation, which may be in an Act of Parliament.

  PROFESSOR CRAIG: Can I take those in turn? To take the bigger one first—were 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 Act—the rump of it, or the remainder of it—could 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 rump—what's left—of 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 amended.

  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?

  PROFESSOR 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 law—absolutely no doubt about it—by the European Court of Justice, the Commission and the other EU institutions.

  The other thing to bear in mind—I 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 taken—is 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.

EXAMINATION OF WITNESS

Witness: PROFESSOR TREVOR HARTLEY, London School of Economics, gave evidence.

  Q20  CHAIR: 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 to interpretation?

  PROFESSOR HARTLEY: Declaration 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.

  Q21  KELVIN 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)?

  PROFESSOR 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.

  Q22  KELVIN 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?

  PROFESSOR HARTLEY: I don't think the Court of Justice would attach any weight, really. It has its view; we have our view—by "we" I mean the United Kingdom—and I don't think it would consider that clause 18 affects the position in European Union law. It wouldn't concern itself—or it might concern itself, but it's got no power to decide—with what the position is in British law.

  Q23  CHRIS HEATON-HARRIS: Should we care what the European Court of Justice feels about this?

  PROFESSOR HARTLEY: Well, 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 is—and I think we do care what European Union law is—but still it can't basically affect the position of Parliament in British law.

  Q24  PENNY 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?

  PROFESSOR HARTLEY: Well, 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.

  Q25  CHAIR: Could I ask why not, Professor Hartley? Why do you think that the House of Lords—or the Supreme Court—would not take a different view from that in Thoburn?

  PROFESSOR HARTLEY: Because 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.

  Q26  STEPHEN PHILLIPS: I agree with you, and I think the Chair does as well, that the decision in Thoburn is right—so all three of us are in agreement—but 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.

  PROFESSOR HARTLEY: Yes. 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 courts—the UK courts—take a different view from the view they've taken before.

  Q27  PENNY MORDAUNT: Can we be sure that EU law is directly effective and applicable in national law only because of the European Communities Act?

  PROFESSOR HARTLEY: Yes, 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 Act—if you repealed it—EU law would immediately cease to have effect in Britain.

  Q28  CHRIS HEATON-HARRIS: In a way, you've described the European Communities Act as a gateway by which we allow, on an individual basis up to now—up to Lisbon—different 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?

  PROFESSOR HARTLEY: First, 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 treaties—because there have always been several of them—plus 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 says so.

  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 does—not completely, but to a certain extent—and 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.

  Q29  CHRIS HEATON-HARRIS: 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?

  PROFESSOR HARTLEY: As 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 leaving—or 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?

  Q30  STEPHEN 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?

  PROFESSOR HARTLEY: No, 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.

  Q31  MICHAEL 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?

  PROFESSOR HARTLEY: Yes. 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 anyway.

  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.

  Q32  MICHAEL 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 absolute—Parliament could decide to do anything that it wishes—or the sovereignty clause would describe the primacy of UK law. Does this in fact describe primacy or just restate the duality?

  PROFESSOR HARTLEY: It simply restates who decides the question of primacy, and how. Ultimate primacy lies with UK law, but UK law can—and, in the European Communities Act 1972, did—say 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.

  Q33  MICHAEL CONNARTY: It does not take back primacy.

  PROFESSOR HARTLEY: It 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.

  CHAIR: That is a very good moment to bring in Jacob Rees-Mogg. I know that he would like to ask a number of questions.

  Q34  JACOB REES-MOGG: 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.

  PROFESSOR HARTLEY: On 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.

  Q35  CHAIR: Is it not a democratic question?

  PROFESSOR HARTLEY: Yes.

  Q36  CHAIR: 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.

  PROFESSOR HARTLEY: Yes, 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 constitution—I cannot remember the exact date—they 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.

  Q37  KELVIN HOPKINS: On that last point, it is a case of saying, "We took our freedom—it wasn't given to us".

  PROFESSOR HARTLEY: Yes. That's right.

  Q38  KELVIN 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?

  PROFESSOR HARTLEY: Sorry. Are you asking would it be better if clause 18 was put in a separate Act?

  Q39  KELVIN HOPKINS: Well—if 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?

  PROFESSOR HARTLEY: Clause 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.

  Q40  KELVIN HOPKINS: Well, it is just a question of making it more general, in the sense of having a wider application.

  PROFESSOR 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 law—not only EU law, but the European convention on human rights, the UN, anything—should 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 before—I don't think that it changes the position.

  Q41  KELVIN HOPKINS: I have a personal question, Chair. I wonder whether I might ask it.

  CHAIR: Of course.

  KELVIN HOPKINS: 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.

  PROFESSOR 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 be—and is in some cases—influenced 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 non-political.

  Q42  CHAIR: 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?

  PROFESSOR 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 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.

  Q43  STEPHEN PHILLIPS: May I test your argument? Could the Statute of Westminster be repealed by this Parliament?

  PROFESSOR HARTLEY: Yes.

  Q44  STEPHEN 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?

  PROFESSOR HARTLEY: As 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 Irish—we spoke about this before—deliberately 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 Canada—let us take that as an example—that the Canadian constitution is supreme and Westminster no longer has the power to legislate for Canada.

  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.

  PROFESSOR HARTLEY: Thank you for inviting me.



1   Lord Justice Laws is no longer to give evidence. Back


 
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