Examination of Witnesses (Question Numbers
45 - 111)
Q45 Chair: Good morning Professor
Allan and Professor Bradley. It is extremely good of you to come.
We had a very interesting session with Professor Paul Craig and
Professor Trevor Hartley. No doubt you have had an opportunity
to look at some of that material. We think we are getting somewhere,
but we have important questions to ask you as well. We will start
with the same questions, barring a few that we think we have disposed
of, so that we can have some consistency. The opening question
is first for Professor Bradley and then for Professor Allan, although
if you wish to answer the questions together, as you are together,
that might be a good way of dealing with them. You might want
to interchange, and if you do have differing views, that will
no doubt emerge in the course of the discussion.
My first question is: has the question of whether
European law has supremacy over the constitutional doctrine of
parliamentary sovereignty been finally resolved by the decision
of the divisional court in Thoburn? Following on from thatI
will repeat it later if you want me tocan we be sure that
European law is only directly effective and applicable in national
law because of the European Communities Act?
Professor Bradley: I don't think
that the decision in Thoburn has finally resolved all the questions
that may come up. I, personally, support the general effect of
Thoburn. The idea that there should be a category of constitutional
statutes of a status such that the courts should be slow to find
that they have been repealed inadvertently seems to me an important
step forward. It is not a huge step forward, but I none the less
welcome that development. I am a little surprised that some commentators
have found the statement that a constitutional statute cannot
be impliedly repealed a matter of shame or surprise. I do not
share that view; to me, that is a satisfactory development.
This does not answer all the future questions
that there might be about the relationship between European Union
law and United Kingdom law for this reason: the European Communities
Act provides the doorway through which European Union law is received,
but it is a very short Act, and European Union law is very complex,
being a legal system of a kind to which we have not been exposed
before. Therefore, there is the European dimension which cannot
simply be controlled by the European Communities Act. So long
as the European Communities Act remains in force, at a European
level, European law will prevail. The difficulties comethey
were seen in the Thoburn case to be difficulties that the courts
could deal withif it is the intention of Parliament to
depart from European Union law, how it should do that and, when
it has done that, what the effects of it will be as a matter of
United Kingdom constitutional law. Those difficulties have not
been fully resolved by the Thoburn case.
Q46 Chair: Professor Allan,
would you like to add anything to that?
Professor Allan: I broadly agree
with what Professor Bradley has said. The Thoburn judgment seems
to be a very good attempt to reconcile the problem of the constitutional
basis of EU law with the European doctrine of the primacy of EU
law. It seems to make just enough adjustment to existing understanding
as regards implied repeal to accommodate those competing supremacies.
For that reason, it is probably the correct solution but, as
Professor Bradley says, it does not really answer all the problems
that may arise.
For example, we still do not know what would
happen if a statute purported to operate, notwithstanding EU law,
when the implied repeal solution would not apply. It is not clear
what the court would do in that situation, so I do not think that
the problems are completely resolved. The assumption just seems
to be that we can maybe survive because, in practice, perhaps
they will not arise.
Q47 Chair: Can I ask another
question coming from that very issue? You have raised the notwithstanding
formula, and that is quite a potent question. Professor Allan,
you have written that, "Parliament cannot be accorded unqualified
authority to change the law". In your evidence, you refer
to "our conceptions of democracy
based on the Rule of
Law" and the "legal order itself". Who decides
these conceptions? Which legal order and which law? Is a United
Kingdom parliamentary statute, as clearly expressed from time
to time, derived from the democratic consent of the UK electorate,
or is it EU law based on the voluntary acceptance by Parliament
in 1972, some of which derives from an unelected Commission, some
from majority voting of other member states, and some from the
activism of the European Court itself?
In the circumstances arising from your view
of the legal order and the rule of law, do you consider that an
EU directive, such as the Working Time Directive, could be legally
overridden or amended by UK statute by such express words as "notwithstanding
the European Communities Act 1972", unlike, of course, in
Factortame, when the Merchant Shipping Act 1988 contained no such
notwithstanding formula? Do you see where I am going?
Professor Allan: I would argue
that parliamentary sovereignty is ultimately a common law doctrine,
if only because the courts will have to reconcile the conflicting
instructions that, in your example, Parliament would be giving.
If the European Communities Act gives instructions to the judges
to respect the primacy of EU lawwhich, in effect, it doesand
a subsequent statute says that EU law is not to apply in a particular
instance, the judges are faced with a conflict of instructions.
They then have to decide what the United Kingdom legal order
requires them to do in those circumstances. It is very hard to
know the correct answer.
Q48 Chair: Is that why Professor
Bradley thinks that the bet has not been resolved?
Professor Allan: Yes, in a sense.
As you say, the Factortame case was an easy case because one
could assume Parliament's continuing intention not to legislate
in conflict with EU law. An express notwithstanding clause would
simply raise a doubt. The judges would have to decide whether
it really made sense to allow departures from EU law short of
a full repeal of the European Communities Act. No one doubts that
Parliament retains ultimate sovereignty in the sense that the
1972 Act could be amended or repealed. The difficulty lies in
the area between where Parliament has not clearly done that, but
has none the less purported to legislate inconsistently with EU
law. That simply creates a conflict of legislative instructions
that the judges will have to resolve as best they see fit. It
might depend on the circumstances. If there were very good constitutional
reasons why Parliament objected to the application of a particular
rule of European law, that would give the judges good reason to
say, "Well, we ought to respect Parliament's more recent
instructions to override European law."
Q49 Chair: That is of course
in line with what Diplock and Denning have said in Garland and
in Macarthys, which are not quoted, it appears, in the explanatory
notes, although that is a separate political question for us.
Professor Bradley has of course in the pastin "The
Changing Constitution", edited by Jowell and Oliverposed
the question about the efficacy of "the democratic process
in the UK", asking whether it works "so perfectly as
to justify the absence of any limit upon the authority of Parliament
to legislate." So the question really is: is it a question
ultimately for Parliament to decide, because there resides the
democratic process for determination? I simply invite you, Professor
Bradley, to tell us whether you agree with that, and whether clause
18 fails to resolve the question.
Professor Bradley: I did have
the benefit of reading Professor Tomkins's paper in which, early
on, he declares a commitment and a belief in parliamentary sovereignty.
I have a qualified belief in parliamentary sovereignty, because
it would be remarkable, if we were creating a new constitution
for the United Kingdom, that it would proceed on the basis of
the ability of Parliament to make any law whatsoever, and this
in my view has been recognised. In other words, parliamentary
sovereignty goes further than we need in a democracy. This has
been recognised. I would give the instance of the Human Rights
Act, which goes a very long way towards meeting one of the arguments
against parliamentary sovereignty.
There is a democratic argument to be made for
parliamentary sovereignty. I must point out that it is not the
House of Commons that is sovereign; it is the Queen in Parliament.
It is a bicameral system. If the House of Lords has a function
in the legislature, which it most certainly has, and is not democratically
elected, that suggests that the democratically elected House of
Commons is not on its own able to discharge the burden of being
sovereign. While I understand that there is a democratic argument
for the sovereignty of Parliament, and while I believe that it
is for a democratically elected Parliament to make and approve
key changes of national policyyou mentioned that quotation
from my chapter, Chairit cannot be said that our democratic
system is working so beautifully that it can be trusted on its
own to avoid sometimes committing abuses of a sovereign power.
Chair: Jacob, would you be kind enough
to ask the next question, please?
Q50 Jacob Rees-Mogg: Yes,
certainly. It leads on to who should really decidewhether
parliamentary sovereignty is going to be decided politically by
Parliament or by the courtsin this continuing discussion.
Is the absolute legislative supremacy of Parliament something
that you think the courts will be keener to challenge in future?
Professor Bradley: I would
answer thatmaybe not completelyby saying that parliamentary
sovereignty is quite a complex concept. It is not one that you
can boil down to a single rule that one could put into a statute,
for example. It concerns foundations of our legal system, foundations
of our democratic system, and relations between Parliament and
the courts, Government, and so on. That is why in my paper I have
tried to say that one cannot say that it is for Parliament to
create the doctrine of parliamentary sovereignty and it is not
simply for the courts alone to do so. It is a much more complex
constitutional relationship, which has come about through history.
Finding the ultimate source of parliamentary sovereignty is, in
my view, a very interesting theoretical speculation, but not a
very important one.
What is of great interestand it is the
work that the Committee is involved with at the momentis
trying to explore the implications of it today and how it is going
to develop, because I do not believe that our constitution in
its essential elements has come to the end of the road; it is
still developing and evolving. That is why the relationship between
the courts and Parliament is a dynamic one, in which I would hope
that the courts would respect what they see as the proper role
of Parliament and, equally, that Parliament will respect what
it should see as the proper role of the courts.
Q51 Jacob Rees-Mogg: How do
you see this changing? Do you feel that there has been any shift
from one to the other, particularly in the European context? Has
European law allowed the courts to become more powerful relative
to the legislature?
Professor Bradley: There is no
doubt that the public law role of the courts is more prominent
today than it was, say, 40 years ago. Those who write about the
development of public law talk about the period of the '40s and
'50s as being the great sleep. It was the revival of public law
in the courts in the late '60s and onwardsnow in the procedures
of judicial reviewthat had been enormously important as
a constitutional development, coming of course at the same time
as European development. In the European system, the decisions
of the Court of Justice are extremely important as a source of
principle and application.
I do not think that I have answered your second
question, but maybe Professor Allan could come in at this point.
Professor Allan: On the first
question about where ultimate sovereignty lies, it can be misleading
to think that all the power must lie with either the courts or
with Parliament, because they are interdependent. Parliament's
power depends on judicial recognition. Without judicial willingness
to recognise and enforce statutes, Parliament would have no sovereignty.
Inevitably, the courts have a great deal of authority, if only
by way of interpreting statutes, so there must always be a balance
of power. That is why I prefer to say that sovereignty inheres
in the legal order itself rather than in Parliament alone.
Parliament and the courts are in an interdependent
relationship. The courts necessarily have to interpret statutes
and decide what they mean and, in some cases, interpretation may
go a long way towards imposing constraints on what statute can
achieve. An obvious example is the case of the ouster clause.
If Parliament confers powers on a public body and then says that
there can be no judicial review, that confronts the court with
a dilemma, because that appears to be setting up a body that is
able to abuse the rule of lawto exercise powers that are
not constrained by lawand indeed to flout Parliament's
own instructions in setting up that body with a particular task.
There the court has to say, "In our allegiance to Parliament
itself, we have to make sure that the public body obeys its statutory
instructions," even if that means giving the ouster clausethe
clause excluding judicial reviewa very narrow interpretation.
I see the power between Parliament and the courts as interdependent,
and that's why I think one should say that the legal order itself
is sovereign, rather than any one institution within it.
Chair: Chris Heaton-Harris would like
to ask a question.
Q52 Chris Heaton-Harris: Yes,
on this very point.
Professor Bradley, you have talked about the
evolution that has been going on. I was a Member of the European
Parliament for 10 years, so I have seen this from a different
view from the one I'm looking from now. Will clause 18 go down
as an important part of this evolution of our constitutional development,
or is it just fairly irrelevant?
Professor Bradley: I've been interested
to see the form that clause 18 takes. I have to say that I find
it difficult to see what its practical impact would be on assisting
the courts, or Parliament for that matter, in these situations.
It is true that an extreme position was advanced by Sunderland
council's QC, Eleanor Sharpstonit was really the entrenchment
view that one did not need to worry about the statutory position
in Britain because EU law was entrenched. Plainly, clause 18 would
have made it impossible to advance that argument, but it seemed
to me a rather weak argument at the time, and it was rightly rejected
by Lord Justice Laws. I don't see clause 18 having a huge impact
myself. Is it being unfair to say that it is almost stating the
obvious that matters derived from treaty cannot operate as law
in Britain without some support that gives them effect within
Q53 Chair: Professor Allan,
would you like to add to that?
Professor Allan: I don't quite
agree with Professor Bradley about that, and I will just explain
why. I agree with his approval of the Thoburn judgment, but I
wonder about if the alternative argument were accepted. The EU
Treaty is a very special kind of treaty. The counsel's argument
that was rejected in Thoburn is not unarguable, it seems to me.
As I have mentioned in my evidence, Professor Mitchell and others
have supported itindeed, I have colleagues who think this
is the correct explanation of how the two legal orders should
operate in harness. If that argument is correct, it's hard to
see how clause 18 could make any difference, because if one accepts
the view that the EU order is an autonomous legal order, binding
in the UK so long as we remain a member of the EU, clause 18 would
simply be incorrect. That would follow, I think, from that viewpoint.
I am not saying that that view is correct, but if it were, clause
18 would make no difference. It is very hard to see how it can
protect us from the success of the autonomous legal order argument
if people find it compelling on other grounds.
Q54 Henry Smith: This is really
an extension of the points and questions that have already been
put. If this Bill were to be enacted broadly in its present form,
there is a decision as to whether to hold a referendum on the
transfer of future sovereigntywe are talking about a balance
between Parliament and the courts. Do you think that that decision
would largely be political, or would it be a decision largely
of the courts, and, crucially, would it be subject to the rigours
of judicial review in your opinion?
Professor Allan: Well, Professor
Bradley raises this issue in his evidence. Of course, it would
be perfectly possible for any later statute simply to amend the
Bill and state that any requirement for a referendum is removed.
It is difficult to see how the referendum lock can be made secure.
What is less certain is what would happen if there were no requirement
for a referendum, but there was no express repeal of the requirement
for a referendum. That would be somewhat uncertain. My guess would
be that the court would say that the later statute simply implied
the repeal of the need for a referendum, in which case it would
Professor Bradley: Could I make
a rather more general reflection on that point? It turns into
raising aspects of the referendum lock in part 1 of the Bill.
Going back to the early '70s, when Britain was joining the EEC,
its unwritten constitution made it easy to have a simple Act of
Parliament, but it also made it difficult for Britain to give
the guarantees needed.
What, I think, constitutional courts in a good
many countries in Europe are now realising is that there is another
difficulty. The German constitution, for example, provides certain
guarantees for German constitutional law against excessive acts
by Europe, but there is nothing comparable in Britain. In the
past day or twoand I am in no way an expect on these mattersI've
come across references not only to the German constitutional court's
decisions but to decisions in Poland, Czechoslovakia, Hungary
and possibly other countries. Through their constitutional courts,
they are having to grapple with how one deals with the conflicting
primacies and whether national laws give way in every case to
European Union law. In a sense, this Bill is responding to a need
for the unwritten constitution possibly to be articulated in one
or two ways that could protect British constitutional law and
institutions from excesses by the European Union. That wouldn't
be welcome to the mandarins in Brussels perhaps, but there is
a more general feeling across Europe than there was, shall we
say, 30 years ago.
Q55 Michael Connarty: I find
this very interesting. As I said in a previous session, I'm tempted
to go back to when I used to study and teach the British constitution
at high school. It is dangerous territory; we end up where you
are speaking about. May I clarify something for the record? You
may have seen that I have a particular interest in what advice
we, as a Committee, would give to the Bill Committee, which will
meet on the Floor of the House after all this evidence has been
given and sifted through.. What you seem to be saying, Professor
Bradley and Professor Allan, in what you've written and said is
that clause 18 in reality does not change anything. You've said
that the Dician principle has been eroded and that clause 18 would
not lead to any change in that. I think you, Professor Allan,
said something similar, and therefore clause 18 makes no difference,
whether or not Thoburn was right. It doesn't matter; clause 18
doesn't make any difference. Basically, would you say that clause
18 would not change how the courts interpret their duty to review
legislation in light of EU law under the European Communities
Act? Clause 18 would make no difference to that in court.
Professor Bradley: I know Professor
Craig in his paper considers one or two scenarios in which it
might have an effect. I don't repeat that. On the general questions,
there might be a case in which an EU regulation of some level
was the basis for action taken in the United Kingdom. Is it arguable
that on a particular topic it falls outside the scope of section
2(1) of the European Communities Act? If that is a possibility,
clause 18 would have some application and it would make a difference.
The judge could then say, "The only authority here is the
European rule, which is not within the definition of European
law within section 2(1)." Whether a judge would have said
that anyway, I cannot say. Plainly clause 18 would assist the
judge to say, "In that case, find a statute, Mr So-and-So."
I think that is an unlikely example because section 2(1) is drafted
in very broad terms, as is clause 18, which simply brings in the
broad terms of section 2(1). I am not ruling out that there could
be a case in which it would have an impact, but my view is that
it is unlikely to have much practical effect. It may have a symbolic
Q56 Michael Connarty: I'll
ask about symbolic in a minute. Professor Allan, could you comment
on the case of actual rather than symbolic effects?
Professor Allan: I can't myself
see that it could have any effect at all, because it simply restates
the dualism principle, which Thoburn accepts, that EU law ultimately
has effect in the UK as a result of the European Communities Act.
If there were some reason to question whether the relevant measure
did fall within the provisions of section 2 of the European Communities
Act, that question could already be raised without clause 18.
If the Supreme Court were minded to reject Thoburn
and say that in its view Britain is a loyal member of the EU,
had indeed accepted all the jurisprudence of the European Court
of Justice, so that until Britain withdrew from Europe altogether,
we were bound by all of the European jurisprudence, and therefore
unable in any circumstances to resist the primacy of EU law, clause
18 would make no difference, because the Supreme Court would be
driven to the conclusion that this was an erroneous declarationit
did not change the law. I can't see any circumstances in which
clause 18 could be significant other than perhaps in a purely
symbolic way, as a restatement.
Q57 Michael Connarty: Can
we turn to symbolic. Both of youwhat would be the value
of something that is symbolic but does not make a difference?
Professor Allan: I'm very sceptical.
Q58 Chair: Not Eurosceptical.
Professor Allan: No. Sceptical
of the point of clause 18. I can't see that it adds anything in
Q59 Chris Heaton-Harris: Does
it not make a political statement of Government intent?
Professor Allan: That doesn't
change the legal position; that's the problem. Perhaps we want
to be more confident that the court will uphold the Thoburn judgment
and not accept the theory that EU law has an autonomous existence
within the UK. That seems to rest on legal arguments about the
merits of the rival cases. Clause 18 is no different from the
European Communities Act itself. It does not solve the legal problem.
Q60 Michael Connarty: You
mentioned symbolic. What is the purpose of it being symbolic?
Professor Bradley: Could I give
an example of a symbolic provision, which I think is of real value?
The Constitutional Reform Act 2005, which dealt with the reform
of the judiciary and the position of the Lord Chancellor and so
on, makes provision that Ministers should be concerned to uphold
the rule of law.
Q61 Chair: It says the same
about judges as well.
Professor Bradley: And judges,
yes, and judicial independence. Those are huge concepts constitutionally,
with a lot of ramifications. I don't know precisely what the rule
of law means. I know Professor Allan has written much more about
it than I have. There is a symbolic value in reminding everyone
that it is not just the latest clause in an Act of Parliament
that should carry the day.
Could I give an example that the Committee might
find relevant, although ultimately I conclude that clause 18 would
make no difference? That is the way in which the European arrest
warrant was transposed into UK law. The British regulations were
pretty complex and added in requirements that were not in the
terms of the European arrest warrant, which caused all manner
Q62 Michael Connarty: That
is what's called gold-plating.
Professor Bradley: Ultimately,
the Supreme Court said that it was not permissible, because one
had to go by the European law. I don't think clause 18, in that
situation, would make any difference.
Q63 Jacob Rees-Mogg: Professor
Allan, following on from what you've been saying and paragraphs
10 and 11 of your evidence (REF), if you take the view, which
I would absolutely see the logic of, that Thoburn is right, clause
18 becomes unnecessary. If it is wrong, and there is this higher
level of European law, it is pointless. The question I would ask
is whether we are moving along. In 1972, it was absolutely clear
that European Union law had effect only because of an Act of Parliament.
As times have developed, there is more of a feeling and more of
an argument that European law actually has a status of its own.
If that is the move that we're having, does
clause 18 help to move the tide back? What you're saying in paragraphs
10 and 11 makes complete and logical sense, but are we actually
somewhere in between? Therefore, do we need to say to the courts,
"Let's go back to 1972. Let's reassert this basic principle
as an aide-mémoire, because otherwise European law is coming
in as a fount of justice in its own right"?
Professor Allan: That is a very
good question, and I am very tempted to agree with that, although,
I think, in the end I am resistant to it. The problem is that
it is not like affirming the rule of law or the independence of
the judiciary, which is a very important symbolic act; the problem
is that this touches the sovereignty of Parliament itself. That
is the difficulty. It is impossible to take the responsibility
to decide how to reconcile these conflicting supremacies away
from the judges. This seems to be just adding further instruction
into the mix. It doesn't seem to be able to resolve that potential
Even if it is a strong assertion of Parliament's
view of the current position, I don't see logically how it could
restrain a judge who thought that development was such that there
was now very little prospect of Britain leaving the EU, for example,
and that it was better to have a unified legal order where there
wouldn't be potential conflicts and where the judges would know
precisely what they should do in the event of conflicting instructions
and, therefore, accepted this alternative autonomous theory. I
think that is rather unlikely to happen.
Q64 Chair: Well, as a matter
of fact, Professor Bradley, in his works, has actually already
dealt with the question of the extent to which it would be unlikely
for such an occurrence to occur. In the discussions that we've
had, there is a certain difference of opinion between the two
of you in respect of some of these issues.
Coming to the point, if a statute derogates
from an EU legal obligationrepeating my point about the
Working Time Directive, for exampleby using a notwithstanding
section, in respect of the European Communities Act, it would
appear that the Working Time Directive would not apply in the
UK. In your judgment, how would the courts interpret that?
Professor Bradley: I didn't comment
earlier on the notwithstanding point. It is not an easy one, but
my view at the moment is that if the intention is made very clear
in the new United Kingdom statute that this is to operate, notwithstanding
the particular rule of European Union law, that is what the courts
would apply. They would enforce that.
Q65 Chair: That is very clear.
Would it follow that if clause 18, which you regard as being of
little effect other than declaratory, was needed to be altered
in any way to ensure that it achieved an objective that was to
reflect the will of Parliament, a clear, inconsistent, subsequent
enactment, including the word "notwithstanding," would
actually be necessary?
Professor Bradley: It's the difficulty
of marrying together the general proposition with the specific
instance. The logic that follows from the Laws argument in Thoburn
is that for Britain to depart from EU law would need a very specific
provision like "notwithstanding a certain directive".
Then, to me, the answer is decided by the terms of that statute
so I don't think the clause would help. Had this clause been in
existence before the Merchant Shipping Act 1988, I don't think
it would have been of any effect because section 2 of the European
Communities Act is still operative and therefore there is still
statutory support for the EU rules.
Q66 Mr Clappison: I think
you dealt with my question when responding to Mr Rees-Mogg. I
was wondering about the practical side of this. You were dealing
with how things have changed over time since Britain's entry to
the European Community and in successive treaties and other ways
since then. We have seen a huge shift of competence to the EU,
particularly through the most recent treaties, and also of law
making and decision making. What effect do you see that having
on the constitutional position just because so much competence,
so much power and so much authority is vested in European institutions.
How do you see that shaping the future of the constitutional doctrine,
which I think Professor Allan said would remain intact in his
view? How would you see that shaping the doctrines?
Professor Allan: I think it does
make it more difficult to be confident about what the court would
do in the event of a notwithstanding clause, to go back to the
previous question. Professor Wade argued very strongly at the
time of Factortame, that he rejected the reasoning in Thoburn,
or reasoning of that kind put forward at the time, that this was
simply a matter of construction and that the court would try to
read the statute compatibly with European law so far as possible.
He took the view very strongly that that was simply inconsistent
with membership of the Union. I argued and disagreed with that,
but I do think he had a point.
I think that the halfway house, keeping the
European Communities Act unamended but then having a notwithstanding
clause in relation to a later measure, sets up a real contradiction.
The longer we remain a member of the European Union and the more
powers that are transferred, the less realistic it becomes, probably,
for judgesnot to deny that Britain could not withdraw altogetherbut
the more unrealistic it becomes to expect judges to disapply or,
rather, to override EU law in particular instances. I do think
there is some possibility there that doctrine may shift in that
respect and so we might then see Thoburn as one step towards a
larger modification whereby the judges would say, "Well,
we must have an explicit repeal or amendment of the European Communities
Q67 Chair: But then it would
be a political question of democratic consent, wouldn't it?
Professor Allan: Yes, I think
that if Parliament makes it clear that the whole basis on which
Britain's membership of the European Union is being changed, then
the judges would certainly respect that.
Q68 Chair: But that's a very
big question. It's a huge leap from saying leave the community,
on which so many of these constitutionalist arguments seem to
be constructed, to modifying the application of a particular law
which is causing problems in the economy or in the national interest
by using the notwithstanding formula, such as the Working Time
Directive, some would argue, which seems to me to be of a different
order. Whereas the broad landscape question about leaving the
European Union is a huger question, the other one raises questions
of principle, which also need to be addressed, surely?
Professor Allan: Well, I think
that is right, but it may be that the judges are not the right
forum. It may be that we have to rely on political measures to
resolve the problem in the machinery of the Union. Otherwise we
are giving judges conflicting statutory instructions and they
have some duty to ensure that the rule of law, in the sense that
people know what their obligations are, has reasonable certainty.
Professor Bradley may be right. At the moment I think that a clear
notwithstanding clause would probably be accepted, but I don't
think we can be confident that that will remain the case for ever.
Chair: That's a big question.
Q69 Henry Smith: To extend
that point about having had almost four decades of competencies
transferring to the European Union, and the opinion that, as you
have said in evidence, clause 18 in itself would not be strong
enough to take us back to the 1972 situation before the European
Communities Act, does it therefore follow that, to take us back
to that position, would take the establishment of something akin
to the German constitutional court or constitutional courts that
exist in other EU member countries, and therefore something more
akin to a written constitution solution?
Professor Bradley: I was in fact
wondering about adding my answer to what Mr Clappison had asked.
If one were looking for guidance of what kind of principles or
values one wishes to protect, the German constitutional case law
could provide some examples. They do have protection of rights.
They have certain aspects of the German constitution that cannot
be amended. There are other federal matters. It is a little difficult
to see how these could be translated into something specific for
legislation by Parliament. But I can understand the feeling that,
"Well, don't we have some of our constitutional history and
experience that it is important to continue to stress, even if
European law is developing in certain fields?" I wonder whether
one would get any guidance from what one would put into a British
Bill of Rights; whether trial by jury, for example, might be something
that isn't shared with most of our European partners and isn't
protected by the European Convention on Human Rights, but one
would think that most of us would like to preserve trial by jury
against inadvertent European change.
Q70 Jacob Rees-Mogg: Moving
back to what Parliament now may not do, if it passed an Act that
revoked or amended the European Communities Act and withdrew the
UK from the EU or part of the EU, could it be argued on the basis
of the obiter observations of the three Law Lords in the case
of Jackson that the courts could disapply the revoking or amending
Professor Allan: I wouldn't have
thought so. I read Jackson as just, in a way, stating what I said
earlier in the sense in which parliamentary sovereignty itself
is a doctrine linked with the rule of law. I think the judges
were saying that even the supremacy of Parliament is accepted
on certain very basic assumptions about upholding the rule of
law. I don't think that they were laying any basis for resisting
a move by Parliament to withdraw or repeal the European Communities
Act. So I don't think that's any basis for that.
Professor Bradley: I felt in regard
to the speech of Lord Steyn, for example, that I admired some
of the ideas he was expressing, but I don't see how they came
to be justified in the particular circumstances of the litigation
before them. The courts at that level should surely deal with
the issues they have to deal with and not go into unnecessary
matters that may deprive their decisions of some of their force
if people get concerned. There was, I think, a simple clear-cut
solution in the Jackson case. I don't think it was necessary in
that case to get into those wider considerations. I wouldn't have
thought, with all respect to Lord Steyn, Lord Hope and Lady Hale,
that what they were saying would be a baton for other judges lower
down in the system to pick up and run with. I think it would be
clearly judged as wide obiter, and shouldn't be taken as typical
of judicial views.
Q71 Chair: But that is important,
because after all they are in the Supreme Court, or at any rate
two of them remain. Lord Bingham felt it was necessary in his
book "The Rule of Law" and in his commemoration lecture,
most unusually, to make some very strong comments in defence of
Jeffrey Goldsworthy's view and his own regarding the question
of the defence of parliamentary sovereignty.
If I could just quote what Lord Steyn said,
because I think it is important to get this on the record. You
have referred to him, saying you weren't quite sure that he'd
perhaps got it entirely right, if that is not unfair of me. The
wording he used was, "The classic account given by Dicey
of the doctrine of the supremacy of Parliament, pure and absolute
as it was, can now be seen to be out of place in the modern United
Kingdom. Nevertheless, the supremacy of Parliament is still the
general principle of our constitution. It is a construct of the
common law. The judges created this principle. If that is so,
it is not unthinkable that circumstances could arise where the
courts may have to qualify a principle established on a different
hypothesis of constitutionalism."
That sounds awfully like what Professor Trevor Allan said in a
book he wrote some time ago.
I just wonder whether that isn't also to be
weighed against Lord Hope's comment, which you have mentioned
as well. It is quite categorical: "Our constitution is dominated
by the sovereignty of Parliament. But Parliamentary sovereignty
is no longer, if it ever was, absolute." And then he goes
on. We are talking about some very, very important judicial statements,
which I would suggest go beyond the suggestion of pure obiter.
They are making a claim about the sovereignty of Parliament, which
is what this inquiry is looking into. Their being in the Supreme
Court raises certain questions about how they might, for example,
apply similar principles to these vexed questions that we are
looking at on clause 18.
Professor Bradley: I would respond,
I fear, slightly to disagree. Not if one looks at the paragraph
from the Laws judgment that is quoted in the explanatory notes,
for example, the categorical statement that "Parliament cannot
bind its successors
cannot stipulate as to the manner and
form of any subsequent legislation." Lord Justice Laws went
on to state, "Being sovereign, it cannot abandon its sovereignty."
I have in my writings tried to show why I think those ideas are
overstated. If there is a vote in Northern Ireland in favour of
unification with the Republic, the British Parliament will abandon
sovereignty over Northern Ireland. It has, I think, abandoned
sovereignty over many Commonwealth countries, and it is pointless
to ask whether one could repeal the independence legislation.
Particularly on manner and form, I was very
interested, Chairman, as you have mentioned Goldsworthy's work,
that in his most recent book he is not against the possibility
that Parliament can govern the future form and procedure of legislation.
I would say it does, anyway. If Parliament today reconstructs
the House of Lordsmaybe turns it into a senateParliament
in future will be the Senate and the House of Commons. There is
no way that the present House of Lords could come into being again.
By altering the composition of Parliament, Parliament could alter
matters of form and procedure. It may not wish to do so and it
may not always succeed, but the fact is that it could do so. To
take part 1 of the present Bill, I am not saying that Parliament
cannot enact part 1 of the Bill as it stands. What I would say
is that one cannot be certain in all circumstances of what its
effect will be, as Professor Allan has already mentioned, if there
is future legislation.
Professor Allan: Can I just add
a comment on these interesting dicta in the Jackson case? Part
of the problem is that some of those judgments appear to be suggesting
that some important constitutional change is in the offing. We
are told that, step by step, the principle derived from Coke and
Blackstone is being qualified. Another way to understand this
is that perhaps we are getting a better grasp of the nature of
parliamentary sovereignty. If you go back to Dicey, he was clear
that there was a balance between the sovereignty of Parliament
and the rule of law. He laid a lot of stress on the powers of
the courts to interpret legislation. I think that one could read
Lord Steyn and Lord Hope as not advocating revolution or any major
constitutional change, but simply underlining the point that all
along there has been an implicit understanding that legislative
supremacy is exercised in the context of a constitution built
on the rule of law. That goes back to the point that I made about
ouster clauses and so on beforehand. It would be a contradiction
for Parliament to confer wide powers on a public body and then
deny all judicial review, because that is to take the body outside
the rule of law, and that is probably what Lord Steyn primarily
has in mind.
Q72 Chris Heaton-Harris: Bearing
in mind the problem that clause 18 is trying to solve, in a way,
what should it contain, what should it look like and how should
it be drafted? Or is it actually impossible to draft something
that makes such a profound change in just a paragraph?
Professor Bradley: My guess is
that, when the European Communities Bill was being considered
Chris Heaton-Harris: I am after help
with my amendments.
Professor Bradley: in Parliament,
it had been seen. Mr Heath's Government had sent it to Brussels,
and Brussels had said, "Well, this is all right. This is
a sufficient guarantee that the United Kingdom will observe the
requirements of Community law." That is possibly one reason
why the Government refused to allow any amendment to be made to
that Bill. If clause 18 or some equivalent is enacted, I would
be astonished if Brussels immediately said, "Well, this puts
the United Kingdom in breach of its fundamental obligations towards
the Union." Professor Craig might say that a lot of specific
instancesfor a referendummight do that, but I have
no authority on that at all.
I find it difficult, I'm afraid, to answer your
question. Clause 18 is making a certain point and let it be made.
Whether one could redraft it or reform it in a way that meets
more essential concerns, I find it very difficult. I'm afraid
I'm not going to offer a constructive answer to your question.
Professor Allan: That would be
my answer as well, I'm afraid. I think that while the European
Communities Act 1972 is on the statute book, it is hard to see
how one could draft a clause that would make any significant difference.
All one can do is try the notwithstanding clause in respect of
a particular piece of legislation. To try and do it in a general
way, however, just sets up a contradiction with the effect of
the European Communities Act. That is the difficulty.
Professor Bradley: A further thought
came to me while saying that I could not give a constructive answer
to Mr Heaton-Harris. Maybe, now that we have a Scottish Parliament,
if one wanted to, one could put a clause in that would in some
way preserve the Sewel convention in matters of European law.
That is not unlike what has happened in Germany. I do not know
whether the Scottish Government have complained that they have
been left out of discussions over EU matters that concern them,
but a clause of that sortto preserve the interests of the
Scottish Ministers, the Scottish Parliament and to work similarly
for Walescould surely be added and it could not be said
to be in breach of any fundamental obligation towards the EU.
Chair: That is a
good moment to bring in Michael Connarty.
Q73 Michael Connarty: Yes.
I found a lot of the contributions very interesting
and tempting, but not always particularly relevant. I loved the
debate about where we're going in our changing constitution and
what the purpose was of parliamentary democracy in the first place,
but I'm much more interested in the evidence you've given about
the possibility that this Act in generalif it's enactedsaying
there must be a referendum, attempts to bind future Parliaments
and therefore has to be, you say, a constitutional law. You could
not have an implied repeal by having a future Act of Parliament
that did not contain a referendum in relation to something to
do with Europe. Can I just ask a question on the very principle?
You say in paragraph 11 that, basically, "the common law
recognises a category of constitutional statutes." Can I
just ask very simply for the laymanI am very much a laymanwhat
makes a constitutional statute in common law, in relation to any
other, which then has this problem that it cannot have implied
Professor Bradley: Somewhere I
had a note of what Lord Justice Laws said constituted a constitutional
Chair: He's coming to see us.
Professor Bradley: His examples
were matters that concern the relationship between the state and
the citizen, and the people; orand he said it is likely
to be the same thingthat concern the fundamental rights
of the people. So the Scotland Act 1998, creating a new democratic
system in Scotland, the European Communities Act, the Bill of
Rights, the Parliament Actthese are all
Q74 Michael Connarty: I recognise
them by their being there, but what I'm trying to get at, and
what I'm really interested in, is that you seem to imply that
this Act, if it's passed, containing the referendum could be interpreted
by the Supreme Court as a constitutional Act and therefore would
bind a future Parliament, unless a future Parliament Act specifically
repealed the referendum section of this Act. Is that what you're
Professor Bradley: I think that's
unlikely, but suppose on one of the matters covered by referendum
lock a future Parliament says, "This shall be approved,"
and the Act does not include a referendum clause, I don't see
that any elector will have a legal ground for saying that there
should be a referendum, except in the unlikely chance that you
would go to the court, and the court would say, "Ah, there
should have been a notwithstanding clause to make it a matter
of express repeal, rather than just assuming." That was what
I had in mind.
As I said in my evidence, it's one thing to
say that Ministers should not do anything without an Act of Parliament;
it's the same thing to say that certain changes in EU law should
not be approved without an Act of Parliament. It's another thing
to say that Parliament must itself do something and must include
a clause to that effect, because if Parliament doesn't include
that clause then I would think it would take precedence over what
is now proposed in this Bill.
Q75 Chair: Could I askin
the light of that interesting exchange, which relates to the question
of referendum locks and whether they would limit the sovereignty
of future Parliaments to enact legislation on the EUthe
Government have stated that there will be no transfer of power
or competence from the United Kingdom to the European Union in
the lifetime of this Parliament, so how does this affect your
view of whether the Bill is intended to bind future Parliaments,
and whether it therefore might be said to be unconstitutional?
Professor Bradley: The Government
are perfectly entitled to say what they have done, and if Parliament
wishes to incorporate that statement in legislation it is entitled
to do so as well. What I think cannot happen is that it would
be binding on future Parliaments. I have in mind a similar point
in the Fixed-term Parliaments Bill. It is one thing for this Government
and Parliament to say that the next election is going to be on
such and such a date in five years' time. It is not really competent
for this Parliament to say that the next Parliament also has to
have a fixed term of five years, because that Parliament will
surely be able to make up its own mind.
We are not far off the manner and form, or the
form and procedurein some circumstances I would say, as
I have said already, that Parliament can legislate for the future
form and procedure of legislation. My immediate reaction to the
referendum lock provision contained in part 1 of the Bill is that
it hasn't done so here, therefore there could be future legislation
that ignores the referendum lock. Politically, there could be
a huge comeback to that, but this is the kind of statement in
an Act that is ultimately backed up by a political decision and
wouldn't ultimately be backed up by a legal one.
Q76 Chair: Professor Allan,
do you have a further point before I ask Michael Connarty? Do
you have a further reflection on that point?
Professor Allan: No, I very much
agree with what Professor Bradley has just said. I do think that
the whole question of what is a constitutional statute is a very
interesting issue, but it seems to be quite a fuzzy notion. It
applies very well in the context of the 1972 Act, because one
can see the reason there for saying, "Well, you need express
repeal to have clear instructions, " but it doesn't really
seem to apply with the Human Rights Act, I think, because the
Human Rights Act in any event requires an interpretative process.
It doesn't prevent legislation overriding any of the conventional
rights, so actually I don't think that Lord Justice Laws' reasoning
applies very well to the Human Rights Act.
Q77 Chair: But then, of course,
under the European Court's own rulings in Van Gend, Handelsgesellschaft,
Costa and all the rest, as set out in Declaration 17, it is quite
clear that, contrary to the human rights position, the European
Court asserts constitutional supremacy over our Parliament. That
raises a huge and bigger issue, does it not?
Professor Allan: Yes, but that's
why, in a sense, I think the Thoburn judgment affords quite a
useful reconciliation. We go as far as we can to accept the primacy
of the EU law, but without accepting the constitutional basis
put forward by the European Court of Justice. So, in some ways,
it is quite a special and unique problem. The constitutional statute
idea may be largely a resolution of that particular question.
I am not sure how far it readily extends to other areas, because
it doesn't seem to me to apply to the Human Rights Act, because
of the nature of that Act. I am not sure how far we can extend
Professor Bradley: Could I add
a comment? Lord Justice Laws' judgment suggests that we should
classify an Act of Parliament in its entirety as either being
a constitutional Act or not. That would work better if we had
a written constitution, so that we knew that amendments to the
constitution were coming in as an identifiable package. But our
system of legislation does enable an ordinary Act of Parliament
to include a constitutional clause of quite some significanceexperienced
parliamentarians probably know that. Certainly, when I was advising
the House of Lords Constitution Committee, one of the things that
we were looking out for was clauses in Acts of Parliament dealing
with such things as, perhaps, cockle fishing, dentists or whatever,
but that none the less had immense implications constitutionally.
If I may be forgiven for referring to a matter
of current controversy, I think that the Public Bodies Bill might
appear to be unconstitutional. It needn't be classed as a constitutional
Act, but look at the effects of it. Take an uncontroversial examplea
clause that gives excessive powers to a Minister, a Henry VIII
clause on a matter that shouldn't be dealt with in that way. Isn't
that of constitutional significance as well? Maybe Lord Justice
Laws has helped us with the very clear Acts that can all be identified
as constitutional, but I don't know whether he would agree to
a similar approach being taken to clauses of Acts that were of
similar constitutional significance.
Q78 Michael Connarty: It's
good that we are talking about Ministers, who probably don't follow
the tortuous work of this Committee in its normal form. We try
to get Ministers to adhere to the wishes of Parliament when they
go to Council meetings and agree things, but they tend to go native,
shall we say, when they get there. There is a conundrum. For example,
were a Minister inadvertently, or for whatever reason, to agree,
in breach of a provision of this Bill, to a new proposal that
extends EU competence or power, and that proposal is directly
effective or applicable, as so often they are, without the referendum
law being used, in the UK, under section 2(1) of the European
Communities Act, it would become applicable. Case law suggests
that the European Communities Act is not an Act that can be impliedly
amendedyou said repealed or impliedly amended. In your
view, should a provisionand if so, what provisionbe
put in this Bill to clarify that an EU proposal that extends competence
of power in breach of part 1 of the Bill can never become an enforceable
right for the purposes of 2(1) of the European Communities Act?
How would we put a safeguard in the Bill to prevent a Minister
inadvertently increasing the power of the EU by agreeing something
Professor Bradley: That's a difficult
question, but an important one. What has been done in part 1 of
the Bill, as far as I understand it, is to specify a number of
specific instances where the referendum lock would apply. Your
implied question is: could this become a general clause that stated
that power should not be added or transferred without an Act of
Parliament? Isn't that a perfectly draftable provision to imaginethat
no Minister can extend the powers and competence of the European
Union? We are talking about what Ministers may do; we're not talking
about what a future Parliament may do. Given the great breadth
of section 2 of the European Communities Act, which also includes
the very wide delegated legislation powers, it seems perfectly
proper to draft a general provision that would achieve an object
of that kind.
Chair: I need to ask Chris Heaton-Harris
about this, but I would just like to qualify the expression if
I may, because it was a bit ambiguous, where it states that case
law suggests that the European Communities Act is not an Act that
can impliedly be amended. That is ambiguous, I think. It really
should have said "some case law," because that is a
fairly controversial question.
Q79 Chris Heaton-Harris: I
am interested in the transfer of competences angle. In practical
terms, there are very few vetoes for a British Government Minister
to use. Could it be argued that in areas where we have a future
veto, if we choose not to play it, it would extend a competence?
Post-Lisbon or with the passerelle clause, you could argue that
the European Union has as many competences as it needs. Surely,
if it is an area where we have a veto on future power, we are
extending a competence. If that could be argued, are we not constantly
bindingand have we not constantly bound in the pastfuture
Parliaments with things such as the budget negotiations in terms
of the financial perspectives that last for seven years. That
is always going to be longer than a term of any Parliament.
Professor Bradley: I fear that
that question takes me out of my depth. For example, the matters
that Professor Craig addressed in evidence related to the difference
between competence and powers. I am afraid I have nothing to contribute
on that at all. It would depend on the terms of treaty, would
it not? If it says that the European Union body may do X or Y
but shall not do so without a vote whereby the UK has a veto,
it must be arguable whether that is really an extension. We are
not talking about an extension of the EU powers; we are talking
about whether or not the veto should be given. The example you
gave, in very general terms, I will answer as generally as I can
by saying I don't think this would be treated as an extension
of powers. But that is said without any knowledge of the detailed
operation of European Union law. I suggest that would be a question
worth addressing to others than myself.
Q80 Chair: Professors Allan
and Bradley, thank you very much for coming. It has been very
interesting. I think there still remain some uncertainties, and
I think there is a slight difference of opinion between you on
a number of matters, but it has been very helpful to us. Thank
you for coming.
Examination of Witness
Adam Tomkins, John Millar Professor of
Public Law, University of Glasgow, gave evidence.
Q81 Chair: Professor Adam
Tomkins, thank you very much for coming along to see us. We now
have overrun our time slightly, but I think it's been worth it,
because an extra 20 minutes on a matter which goes back several
centuries is probably not time wasted, particularly having regard
to the Civil War, the 1648 and 1649 problems of constitutional
law, sovereignty and supremacy, which ended with the execution
of the King, followed by the problems which arose in the 1680s
and so on. I think we can afford an extra 20 minutes of our timenot
to mention the Reform Act 1867.
Professor Tomkins, we're trying to get a kind
of template by asking more or less the same questions, so forgive
me for starting off with a question that's already been put. Can
you answer this question? Has the question of whether European
law has supremacy over the constitutional doctrine of parliamentary
sovereignty been finally resolved by the decision of the court
in Thoburn, in your opinion?
Professor Tomkins: Mr Chairman
and members of the Committee, good morning. Thank you for inviting
me. I will answer that question in one second, but before I do
so, I must say that as well as being a Professor of Law at Glasgow,
I am also a legal adviser to the House of Lords Constitution Committee,
but I appear before this Committee this morning purely in a personal
capacity. Nothing that I say here is to be deemed to represent
the view of any Committee or Member or Officer of the House of
My answer to your question, Mr Chairman, is
the same, I think, as the answer that you already received from
your previous witnesses, which is to say that no, it would be
dangerous to represent Thoburn as the definitive answer to anything,
because it's a first-instance decision of the Divisional Court.
It's a first-instance decision of the Divisional
Court that was given by a very highly respected but none the less
sometimes quite controversial public law judge, Sir John Laws.
I've heard you say, and I'm delighted to know, that he's coming
to your Committee to give evidence later on. I have no particular
reason to believe that the Court of Appeal or the Supreme Court
wouldn't uphold the reasoning that Lord Justice Laws employed
in the Thoburn case, but it's dangerous, I think, to regard first-instance
decisions as anything other than first-instance decisions, even
where they weren't appealed and even where they are decisions
by judges as eminent in public law as Sir John Laws undoubtedly
Q82 Chair: Leading on from
that, could you be sure that European law is only directly effective
and applicable in national law because of the European Communities
Professor Tomkins: That's my view,
and that was my view long before Lord Justice Laws decided the
Thoburn case. That was my view when I first read and tried to
understand the Factortame litigation from 10 years previously.
I think that it's an uncontroversial position to take. I'm not
aware of anybody taking the alternative position seriously, apart
from Eleanor Sharpston QCas she then waswho put
the argument to the contrary on behalf of her clients in the Thoburn
Q83 Chair: And she is Advocate
Professor Tomkins: Yes. She is
now one of the Advocates General.
Q84 Chair: You ought to bear
in mind that the power of the EU is sometimes reflected by the
Professor Tomkins: Indeed.
To go back to the point about Thoburn, it seems
to me axiomatic and elemental to a fairly basic understanding
of British constitutional law that treaties have force as a matter
of domestic law only if and in so far as they are given force
by Acts of Parliament. There is nothing special or different about
the EU treaties in that regard. I think it's a fairly straightforward
In the light of that, Mr Chairman, I must say
that I find clause 18 baffling, because it is addressing only
that little bit of what is actually a much bigger set of concerns,
and it is addressing the little bit of a much bigger set of concerns
that does not seem to be problematic. That was perhaps why your
previous witnesses have said to you, and I agree with them, that
it's unlikely to be of any real practical effect.
If this is the attemptI don't know if
it isby the UK Parliament to reassert or reclaim some kind
of sovereignty in the face of European competence creep, it "don't
do what it says on the tin."
Q85 Chair: But of course,
you said "Parliament"I think you possibly meant
Professor Tomkins: Well, of course
Parliament has not debated the Bill, apart from the deliberations
in this Committee.
Chair: That is why we are looking into
Q86 Jacob Rees-Mogg: So you're
absolutely sure, effectively, that EU law is only directly effective
and applicable in national law because of the European Communities
Professor Tomkins: I have no doubt
about that, in my mind, as a matter of legal analysis of UK law.
Now, the European Court of Justice and, indeed, other institutions
in the EU may or may not take a different view. But with all respect,
their view as to this question being a question of UK law is immaterial.
Questions of UK law are determined by UK authorities, not European
Q87 Jacob Rees-Mogg: It follows
from that point that the UK courts will therefore remain sympathetic
to the legislative supremacy of Parliament, or do you think that
the judges may be willing to assert more power because of the
development of European law?
Professor Tomkins: I think that
gauging the level of continuing commitment in the UK judiciary
to the sovereignty of Parliament is obviously and necessarily
a speculative exercise. However, I think that the clearest signs
are that the courts are not sure how committed they want to continue
to be to the legislative supremacy, in that sense, of parliamentary
The leading case on this is the Jackson case,
which you talked about with your previous witnesses and which
I wrote at some length about in my written submissions to the
Committee, for the reason that, although it is a case that on
the face of it does not have anything to do with EU law, one of
the things that that case most sharply and, to my mind, alarmingly
indicates is that even our highest court, as was, is not sure
what to do with parliamentary sovereignty. It isn't sure what
the legal basis for parliamentary sovereignty is. It isn't sure
how much parliamentary sovereignty is under challenge. It isn't
sure how much parliamentary sovereignty continues to represent
the "grundnorm" or the "bedrock" or the "keystone"
of the constitutionall of those words are used.
The reason why the Jackson v Attorney-General
case is so long, although so little was decided in it, is that
so many of the judges who decided that case, not only in the House
of Lords but also lower down, wanted to use the case as a vehicle
for the expression of a bewildering variety of different views
about the past, present and future state of parliamentary sovereignty.
The case, I think, is authority for not much, but it is authority
for the proposition that we have the right to be concerned about
what is going to happen to parliamentary sovereignty in the hands
of the courts.
Q88 Chair: Would it not also
be the case that that was what prompted the late Lord Bingham
to take such an unusual step in both a very important lecture
and chapter 10 of his book, The Rule of Law, specificallyI
have to use the wordattacking the basis on which those
assertions were made by certain current Supreme Court judges?
Then again, you have Lord Judge, the present Lord Chief Justice,
saying in the Judicial Studies Board lecture in March this year
that we must bewareI know that this is in the context of
Strasbourg decisionsof the fact that some of our judges
are directly applying Strasbourg precedents, which he effectively
condemned. For practical purposes, it seems that we are getting
to where the Supreme Court is beginning, as Professor Drewry said
in his previous Toulouse lecture, to enter into territory that
no previous generation of judges has ever seen fit to go, which
rather endorses the view that you have just expressed in broad
Professor Tomkins: I am glad you
said that, because I was just about to say that I agree with what
Professor Drewry said, although I haven't read that lecture. Yes,
what Lord Bingham seems to do in his commemoration lecture at
King's College London in 2007, which I referred to my written
submission, was to ally himself with the outspoken criticisms
of Lord Steyn's dicta, particularly in Jackson, which were published
in the Law Quarterly Reviewa journal that is not
normally regarded as being among the more radical law journals.
In that journal, what Lord Steyn said about the sovereignty of
Parliament in Jackson was described as "unargued and unsound,
historically false and jurisprudentially absurd". Those aren't
Lord Bingham's words, but those of the author of the article in
the Law Quarterly Review, Richard Ekins. But Lord Bingham
seemed to ally himself with those, and made the point very clearly
in his commemoration lecture that what Lord Steyn said in Jacksonthese
are Lord Bingham's words now"did not bear on an issue
which had to be decided in the case, and therefore have no authority
Q89 Chair: That wouldn't sound
very much to me as if he was endorsing those propositions as being
reflective oflet's call itthe rule of law.
Professor Tomkins: Lord Bingham's
view in Jackson was that the bedrock of the British constitution
isnot just wasthe supremacy of the Crown and Parliament.
It is the dissent from that view, which you can see in the opinions
of Lord Steyn, Lady Hale and Lord Hope, which I think Lord Bingham
is coming back to in his 2007 lecture.
Q90 Chair: Would you like
to give us some of your views? You had the opportunity to listen
to a variety of views expressed today and also, no doubt, to look
at some of the evidence that has already been put on the website.
Would you like to give us your views about the efficacy of clause
18, against the background of not merely the revocation of repeal
of the European Communities Act, which some would say is an extreme
Act, but the question of dealing with a disapplication of individual
provisions by the use of the expression "notwithstanding
the European Communities Act 1972", with specific reference
to, for example, a highly political but none the less important
question, such as the Working Time Directive, on which the Prime
Minister himself has indicated in a lecture in recent years is
something that some people would like to see, to use the vernacular,
Professor Tomkins: I agree with
the evidence that you've heard already this morning that it is
very difficult to know whether clause 18 adds anything very much
to the current legal and political debate about what the effect
of a "notwithstanding" clause is likely to be. The short
answer is we simply don't know what the British courts would do
with a "notwithstanding" clause, as it hasn't been in
legislation that has been litigated. I agree with the evidence
of Professors Bradley and Allan that, assuming that the "notwithstanding"
clause was sufficiently robustly and tightly drafted, as you would
expect it to be, the British courts, on current evidence, would
be highly likely to give effect to it.
Q91 Chair: In your written
evidence you gave an instance of an Act where there was a disapplication
that used language that you indicated could have the desired effect.
Professor Tomkins: Yes, in a Bill,
not in an Act. That Bill was never passed.
Q92 Chair: It was
a Bill, of course, yes. It happened to be my Bill.
Professor Tomkins: Yes.
Q93 Michael Connarty: Can
I follow that up? It seems, having watched the procedures of the
European Union, that if you passed an Act that had a notwithstanding
clause in it that then contradicted or denied some part of European
legislation that we had agreed to in Council in some way, surely
the European Court of Justice would judge on that and someone
would apply to the British courts to have a judgment on whether
that was binding. Presumably, under the '72 Act it would be binding,
because it's really an implied amendment or rejection of that
Professor Tomkins: There are two
claims to supremacy on the table here and there have been since
1964, when Costa v. ENEL was decided by the Court of Justice
eight years before the UK joined. These two claims to supremacy
compete with one another. So far in the history of the European
Union, quite remarkably, these two claims to sovereignty have
never clashed. The nearest they came to clashing in the UK case,
of course, was the example of Factortame. But they have never
actually clashed, so we don't know what will happen if or when
they do. It's necessarily a speculative exercise.
The immediate question for this Committee and
the House is whether clause 18 will make any difference to any
of this. My respectful submission to you is that it doesn't. I
read Professor Craig saying to you on Monday that if and in so
far as clause 18 is a sovereignty clause, it's not a primacy clause
and doesn't deal with the question of which has primacy in the
event of a direct clash between these two different competing
claims to supremacy.
Some things are more likely than others. One
thing that is likely to happen in the event of this sort of scenario
is that the Commission would take action in the European Court
of Justice, which would find that the UK was in material breach
of European Community law and it might then be subjected to a
penalty payment. What if the UK didn't pay itrefused to
pay it? Not only are we speculating now, but we're outside the
domain of law. There won't be a legal solution to these sorts
of questions, should they ever arise. There would be a political
or diplomatic solution of some sort. These are ultimately not
questions of law.
My view, however, is that if the UK Parliament
passes legislation that clearly articulates that a particular
piece of legislation is to have effect and be available in the
UK, notwithstanding any provision to the contrary in the ECA 1972,
and notwithstanding any provision to the contrary in European
Union law, the UK courts would, for the time being, give effect
to that notwithstanding clause, notwithstanding the fact that
in doing so they would know that they would be in breach of EU
law. However, even if that prediction turns out to be correcteven
if that analysis is legally correctI don't think I would
be relaxed about the Committee taking the conclusion from there
that we could afford to be blasé about this for the foreseeable
future. There's no guarantee that 15 or 20 years down the line
the same sort of legal advice as you've heard this morning would
be given to a Committee such as this.
This is an area of lawby that, I mean
constitutional law generally and specifically the relationship
between member states and the EU within our British and European
constitutional arrangementsthat is changing. It's changing
all the time. It's changing partly because of things that are
happening in this House, partly because of things that are happening
in the courts and partly because of things that are happening
in Europe. We are in athis is going to sound a bit pompous;
sorryprolonged moment of constitutional fluidity.
Q94 Michael Connarty: I have
a minor supplementary question. It seems somewhat trivial, but
does clause 18 therefore have any symbolic value? I suppose the
question coming out of that is, why put it in at all? Is it necessary
if it doesn't have some value?
Professor Tomkins: Let me answer
the second question first, if I may. Why put it in? I think it's
extremely dangerous, as I say in the closing paragraphs of my
written submissions. The rule that I would respectfully urge you
to bear in mind in dealing with this or any other question of
constitutional reform is the most powerful law of constitutional
reform, which is the law of unintended consequences. The more
I think about this, the smaller clause 18 seems. It seems to be
dealing, as I said a few moments ago, with one aspect of a big
problem that is not itself particularly problematic, because it
was fairly clearly dealt with by the Thoburn judgment. Yes, we
can't be overly relaxed about the fact that the Thoburn judgment
is definitive for all intents and purposes. None the less, it's
the state of the law for the time being, and nobody is really
suggesting to you that it shouldn't be the state of the law for
the time being. Thoburn deals with that, and it's an issue that
doesn't really need to be dealt with any further. Clause 18 doesn't
deal with any of the problems that do really need to be dealt
with, in my respectful judgment, relating to questions of sovereignty
in the context of the relationship between the UK and the EU.
Nor does it deal with any other of the challenges to parliamentary
sovereignty outwith the context of the EU that again do, in my
submission, need at least to be considered or examined, if not
necessarily legislated for.
Q95 Henry Smith: Which begs
the question: if the intent of clause 18 is to have the effect
that your evidence and the previous evidence, which we have been
privileged to hear, suggest it does not have, what would need
to be enacted, in your opinion?
Professor Tomkins: That really
depends on what you want to do. I'm sure that in this context,
the parliamentary draftsmen have drafted exactly what their ministerial
instructions told them to draft. This is a question of Government
policy or, if you prefer, a question of parliamentary policy,
rather than a question of legal advicehe said, backtracking.
But the serious answer to your questionwell, that is a
serious answer to your question. The further answer to your question
is that it depends on what you want to try to do.
You're parliamentarians. You, together with
your fellow parliamentarians in this House and in the House of
Lords, may feel that your collective sovereignty is under threatis
under challengein ways that you're not comfortable with,
whether that's from Brussels, Luxembourg or Strasbourg or whether
it's from Scottish devolution, human rights jurisprudence or the
global economy. Whatever the source of your sense that your sovereignty
is somehow under threat in a way that you're not comfortable with,
that source needs to be dealt with. If you take the political
decision to address that in legislationthat's a political
decisionthe legislation has to deal with that source.
Q96 Chair: But don't you agree
it's also a democratic decision, because the basis on which we
are elected is to reflect the views of the voters? You've touched
on the question of the relationship between the United Kingdom
and Europe in the more general sense. If, for example, the assumption
that the single currency was a good idea has turned out to be
questionable or wrong then quite clearly, in so far as we're bound
into Treaty obligations and the rule of law, these are highly
charged political questions that can be resolved only as a matter
of democratic consent. I would have wondered whether it could
really be dealt with by some idea of the rule of law, because
these are questions that ultimately depend on the democratic consent
of Parliament, do they not?
Professor Tomkins: Mr Chairman,
you are quite right. Again, what I would say is that these are
matters about which political judgment is required. Sometimes,
the political judgment will be that these are matters with which
we should deal as a nation through our representative institutions,
such as our systems of parliamentary government. Sometimes, the
political judgment will be that we need to put the question to
a referendum. Sometimes, the political judgment will be that these
may appear to be, temporarily, in the heat of the moment, important
questions that touch on national sovereignty, whereas actually
there are precedents and we can allow them to be dealt with in
the usual way through the Council of Ministers or court action.
The point is that these are questions of political judgment.
Q97 Chair: And indeedif
I may just add one last thought on thatthe Bill is predicated
on the assumption that it will deal only with future circumstances
relating to European law and its development. There are circumstances
in which, to go back to Lord Denning in Macarthys and Lord Diplock
in Garland, one may need to look back to the question of whether
or not the assumptions on which it was constructed need to be
re-evaluated. At that point, Parliament may decide that it wishes
to make a change in order to bring the jurisprudence in line with
Professor Tomkins: Well, indeed,
and as I understand it, there is nothing in the Bill that would
enable that to be done. Again, whether you want to put something
in the Bill to that effect is a question of political judgment.
Remember my law of unintended consequences. Such a declaration
by a Parliament of a member state that it wishes to seek to reclaim
the power, perhaps for the first time, to unpick decisions that
have been made previously is, I would have thought, likely to
have significant consequences.
Q98 Chair: It could have very
important consequences, but it might also be necessary if "notwithstanding"
was effectively the only route that could be adopted to achieve
the correct legal result.
Professor Tomkins: How so?
Q99 Chair: Well, to use the
expression "notwithstanding" creates the circumstances
in which you are excluding yourself from the automatic application
of sections 2(1) and 3.
Professor Tomkins: On the other
hand, perhaps one should not get too excited about the unintended
consequencesperhaps they are sometimes intended consequences.
After all, at least since Nice, if not since Amsterdam, we have
had what has sometimes been called multi-speed Europe. We have
complex systems in Lisbon of opt-ins and opt-outs.
Q100 Chair: Enhanced co-operation.
Professor Tomkins: Exactly. Enhanced
co-operation, closer co-operation, the Schengen area and so on.
Perhaps in a Europe of 27 member states, there is room for different
member states to proceed in different directions and/or at different
paces with regard to certain policy areas, without the whole house
Q101 Michael Connarty: This
is a very interesting discussion, but is any of that in this Bill?
We're not here to discuss the philosophy of the constitution,
but to take evidence to give advice on the Floor of the House
when it sits as a constitutional Committee on this Bill. I don't
see in this Bill the Chair's former Bills on sovereignty that
he has tried to bring forward. You have said more than others
about your concerns about clause 18 in the Bill that we have before
usthat it does not have any effect in real terms on the
relationship with the EU and does not change the interpretation
of the European Communities Act 1972.
Professor Tomkins: Can I just
respond very quickly to that?
I want to ask about something that is far more important.
Professor Tomkins: I am sure that
there are many more important things to be talking about. However,
if the House of Commons were to proceed to legislate this Bill
into law without considering what the implications of legislating
on a little bit of parliamentary sovereignty might be on the rest
of the areas that I have highlighted in which parliamentary sovereignty
may be perceived to be under challenge, there may be very grave
consequences in terms of the way in which such incomplete and
partial legislation would subsequently be used in case law. I
tried to sketch that out in the closing paragraphs of my written
Q102 Michael Connarty: I understand
now what you mean by dangerous. Can I move to the question of
binding Parliaments? If this Bill is passed and is seen as a constitutional
law, a future law relating to the EU passed by a future Parliament
will look as if it is an implied repeal of this Act, if it does
not have a referendum clause in it. Will it, in fact, bind future
Parliaments, unless it specifically has a clause stating that
we must have a referendum on future Bill?
Professor Tomkins: There are lots
of foggy areas over the sovereignty of Parliament, but the foggiest
of them all is the idea that Parliament cannot bind its successors.
There are two big cases in which the expression
"constitutional statutes" has been used by judges. The
first is the Thoburn case, where Lord Justice Laws said that the
European Communities Act 1972 was a constitutional statute. That
was the first anybody had heard of it. The expression "constitutional
statute" was, for these purposes, invented by Lord Justice
Laws in his judgment in the Thoburn case. You can ask him about
this yourself, but as far as I understand it, the reason why he
invented it in the Thoburn case was to deal with an argument that
had been put to him by counsel about implied repeal.
In my understanding, the argument was, in any
event, misconceived, because the doctrine of implied repeal is
much more straightforward, much simpler and much narrower than
most people think. One Act of Parliament can be held to have impliedly
repealed a prior Act of Parliament only if the two Acts are about
the same thing. That is clearly set down in the leading judgment,
by Lord Justice Maugham, in the leading case, Ellen Street Estates,
in the 1930s. In the material case, the Thoburn case, the two
statutes we are talking about are the European Communities Act
1972 and the Weights and Measures Act 1985. They are not about
the same thing. No one could have heldabsent any rhetoric
about constitutional statutesthat the Weights and Measures
Act 1985 impliedly repealed the European Communities Act 1972.
The idea that Parliament would legislate to renegotiate the relationship
between the United Kingdom and the EU without express reference
to the European Communities Act 1972 is, anyway, preposterous.
Implied repeal happens when Parliament has forgotten
that it has already legislated about something, or where there
is an oversight, so that when there are two pieces of legislation
that are mutually incompatible, judicial preference is given to
the latter over the former. That is not going to happen with regard
to the European Communities Act 1972, I would have thought.
The second circumstance in which "constitutional
statute" as a phrase has been usedI think it is much
more important, although it may be less important for this particular
Billis the case of Robinson v. Secretary of State
for Northern Ireland. It was a House of Lords case, in which the
House of Lords split by three to two, with Lord Bingham in the
majority. It was about the correct interpretation of the Northern
Ireland Act 1998, which Lord Bingham and the majority held in
that case to be a constitutional statute.
There the issue is not about implied repeal;
it is about statutory interpretation. The rule or principle that
Lord Bingham ushered in, in the Robinson case, is that the Northern
Ireland Act 1998 is to all intents and purposes the constitution
of Northern Ireland, and it should be interpreted constitutionally,
rather than through the perhaps narrower or stricter constraints
of regular statutory interpretation. So, constitutional statutes
should be interpreted "generously and purposively",
in his words.
That has been picked up in subsequent litigation
in Scotland, where there have been challenges to various decisions
and enactments by Scottish Ministers and the Scottish Parliament
on Scotland Act grounds. This is a much more important growth
of the idea of "constitutional statutes"that
they might be interpreted differently from other statutes, or
that they might be interpreted in accordance with different principles
from the principles that the courts ordinarily use for regular
statutes. That is the law on constitutional statutes.
If this Bill is passed, will it count as a constitutional
statute for either of those purposes? I do not know. I very strongly
agree with the suggestion that was being put to you by Professor
Bradley. There are all sorts of constitutionally terribly important
provisions in bits of legislation that might not be classed as
constitutional statutes as such. I agree with him that the Public
Bodies Bill is a good current controversial example.
Q103 Michael Connarty: Clause
4 lists a large number of things that would attract a referendum.
For example, a future Act might be passed by Parliament in line
with an EU wish or decision in Council to do something in tandem
with the EU as a shared competence that is not at the moment a
shared competence, but it does not say that in so many words.
Rather it says that it will do something in relation to, let's
say, fishing. That is a sole competence of the EU, but I am thinking,
in particular, of an area where we do not have a competence with
the EU entirely and we decide to share it with themlet's
say border policing or something like thatand there is
no referendum on it. Is that an implied repeal? Are they saying
this is a constitutional Act, you cannot do that? Where do we
go from there? It seems to stick us in a list of situations where
they are all constitutional Acts. We cannot imply a repeal of
them and, therefore, we cannot do anything except to have a referendum
on what is merely a sensible, administrative arrangement.
Professor Tomkins: I am really
glad that you asked this question, Mr Connarty, because it raises
another big concern I have with this Act as a whole. The immediate
answer to your question is no one knows. Any answer to that question
is purely speculative and, therefore, is liable to be litigated.
The chances are that it would be litigated a long way up and that
it would cost a lot of money and take a lot of time. It would
generate legal uncertainty. That is not the only instance where
this Bill, if it is passed in its current form, invites litigation.
It goes out of its way to invite litigation.
The other big example is in clause 5(4), which
relates to ministerial statements being laid before Parliament
on whether a particular issue is or is not significantor
sufficiently significant to attract the various locks or mechanisms.
I think that I am right in saying that the explanatory notes state
that ministerial decisions to make or not to make these statements
will be judicially reviewable. Again, it is inviting the courts
to become significantly more involved than they hitherto have
Q104 Chair: This raises the
Professor Tomkins: With respect,
it is not quite the same as the Drewry point. This is not the
court saying, "We want to have a view." This is a Bill
before Parliament that invites the courts to come in. This is
not judicial activism.
Chair: I see that.
Q105 Mr Clappison: I am glad
that you mentioned that, because that is one of the things that
I wanted to come on to following Mr Connarty's earlier question.
It is one of the things that caught my eye. I am not in any way
a constitutional lawyer or an expert, but as a Member of Parliament
I find it rather strange to be asked to legislate on something
that then leaves it open to a member of the public to go before
the courts in a judicial review. Do you think that this would
be improved slightly if we took the decision away from the Minister
and made it subject to a vote in both Houses of Parliament? At
the moment, there is the decision by the Minister. Once that decision
is taken, the only thing that could happen is for a member of
the public, or whoever, to go off to the courts.
Professor Tomkins: That may be
one alternative. Another may bealthough he may not thank
me for saying thisto have a structure such as the one in
the Fixed-term Parliaments Bill whereby the Speaker certifies
that a particular statement is conclusive for all purposes, and
you use parliamentary privilege to keep that out of the court.
Various mechanisms could be employed if Parliament wanted to employ
them to ensure that these statements or decisions were not judicially
reviewable. That might be something that the House will want to
consider as the Bill progresses.
Q106 Chair: I would only add
that I have the lead amendment on that in the Fixed-term Parliaments
Bill and the wording that was chosen expressly excludes the wording
in the 1911 Act. The question of whether it would get to the courts
is a very contentious issue that will be discussed next Wednesday.
We will be going into that in some depth.
Will you throw your mind back to the explanatory
notes on this Bill. Curiously, in respect of Macarthys v.
Smith, which is quoted, and also in regard to Thoburn, the explanatory
notes leave out the reference to what Lord Denning said about
expressly inconsistent enactments. When they get on to Thoburn,
they refer to the sovereignty question in terms that you, Professor
Bradley and Professor Allan have already described, but they leave
out the references to the question of the status of constitutional
statutes. So we have this extraordinary situation in which, as
you indicate, there is the severe possibility that this might
be litigated, but on the basis of trying to get it through Parliament,
the Government explanatory notes almostlet us be bluntdeliberately
leave out the two elements that would move the argument in the
other direction. That suggests to me a sleight of hand that they
may have thought that we might not have noticed.
Professor Tomkins: I don't know
whether it is a sleight of hand or not, but that is on the record.
Chair: Well, I can say that.
Professor Tomkins: I have never
seen a Bill about which I am so concerned about the explanatory
notes as I am with regard to this Bill. Explanatory notes are
cited in court these days. There are contrary dicta about the
extent to which you can do it, but it is a bit like the Pepper
v Hart rule about ministerial statements. It is clear that, as
usual, these explanatory notes have been very carefully drafted,
but it is not clear that these explanatory notes have the sole
purpose of explaining what is in the Bill.
For example, I think that there are mistakes
in paragraph 8 of the explanatory notes, which states: "Clause
18 of the Bill places on a statutory footing the common law principle
of Parliamentary sovereignty" and so on. First, there is
great controversy, as we have already seen, about whether parliamentary
sovereignty is a common law principle. Secondly, clause 18 does
not place on a statutory footing the common law principle of parliamentary
sovereignty, not even with respect to directly applicable or directly
effective EU law. It doesn't deal, as you have already heard,
with the primacy issue; it deals only with the source issue, which
isn't really a question of sovereignty.
Most importantly with regard to that particular
sentence, I think, again, that it is potentially extremely dangerous
for the Government and/or Parliament to signal to the courts that
they now accept that parliamentary sovereignty is simply a common
law principle. If it is a common law principle, it follows, doesn't
it, that, like any other principle of the common law, it can be
changed by the courts? That was preciselythe words unsound,
absurd, unhistoric have been usedthe position that was
taken by Lord Steyn in Jackson v Attorney-General that Lord Bingham
found to be so problematic. The explanatory notes, not just with
regard to the detail of what is said about clause 18 from paragraph
104 onwards, but much earlier on in this particular instance,
are very worrying indeed.
Chair: I am very grateful to you because
I referred in my opening statement to these assertions contained
in the explanatory notes for this very good reason. Of course,
we have invited the Secretary of State himself to come to give
evidence, and we have also asked for the legal adviser to come
with him so that we will be able to ask these pertinent and extremely
Q107 Mr Clappison: As the
Chair has rightly said to you, this begs a question for Back-Bench
Members to ask: what can we do to remedy this situation?
Professor Tomkins: I am afraid
that my answer to that question is going to be the same as the
one I gave in response to Mr Smith's earlier question. That really
depends on your political judgment about what you want to achieve,
what you want this legislation to achieve and the problems. One
kind of classic approach to statutory interpretation that the
courts have taken in the past is what's called the mischief rulewhat
is the mischief that the legislation is designed to remedy, address,
deal with or tackle? Once that question is clarified in your minds,
the rest naturally follows. I can't tell you what the question
is that you want to be addressed in legislation. As I keep saying,
that is a question of political judgment.
Chair: Michael Connarty.
Michael Connarty: No, I'm happy. I read
through your contribution and listened to what you have said,
and it has been very useful. I have noticed at the back Professor
Bradley nodding in one direction and Professor Allan sometimes
nodding in the other. It is clear that there are discussions to
be had among the people who teach these things, but we have had
a very helpful triangulation this morning of three opinions.
Q108 Chair: Could I ask you
another question? We have already put it to Professor Bradley
and Professor Allan and we would like to ask you the same question.
Suppose a Minister was inadvertently to agree, in breach of the
provisions of the Bill, to an European proposal that extends competence
or power, and that the proposal is directly effective or applicable.
It would automatically become an enforceable right under section
2(1) of the European Communities Act in the United Kingdom. Some
case law suggests that the European Communities Act is not an
Act that can be impliedly amended. May I invite your opinion as
to whether provision should be made in the Bill to clarify that
if a European Union proposal extends competence or power, and
is breach of part 1 of the Bill, it can never become "an
enforceable right" for the purposes of section 2(1) of the
European Communities Act 1972? What is your view on that?
Professor Tomkins: My view is
that that is a very difficult question. The scenario that you
paint raises in an acute form a problem of legal certainty. Legal
certainty is a ground of judicial review in European Union administrative
law, and it is a legal principle that also becomes more important
in domestic UK administrative law cases. There will also be arguments
about legitimate expectation and the extent to which legislation
laid down an enforceable right and expectation that a particular
procedure should be followed, quite apart from the question of
whether such provisions bind future Parliaments.
Having identified the potential loophole gap
in the Bill as currently drafted, I am not sure what the wisest
legislative solution is. Were you to include in the Bill a provision
that qualified the definition of directly effective or directly
applicable European Union law as a matter of UK law, so as to
put the UK's understanding of directly effective or directly applicable
law at odds with the ECJ's understanding of directly effective
or directly applicable law, that might put the United Kingdom
in breach of its Treaty obligations in the view of the European
Court of Justice.
Q109 Chair: That in turn would
raise the question, would it not, of the role of the ECJ in the
context of Costa and the other cases that you've already mentioned
in asserting its constitutional supremacy over Westminster, and
therefore our ability to make that kind of judgment? That in turn
would probably end up in the Supreme Court and be left to the
judgments of the Supreme Court judges, some of whom have already
been referred to.
Professor Tomkins: Indeed. It
is inevitablewell, nothing is inevitable, but it seems
very highly likelythat were such a scenario to manifest
itself in practice, it would be litigated all the way up the food
Q110 Chair: Do you think it
possible that given the manner in which the Bill has been constructed,
and in light of the apparent deficiencies in the explanatory notes,
it is not merely an invitation for those persons who might wish
to litigate in future under this, but it also invites the answers
that some people might think they would get from the Supreme Court?
Professor Tomkins: I don't know
if I would go as far as saying that. Turning my mind to alternatives,
one might want to rewind from this Bill a little bit and say,
"If we are worried about Ministers agreeing under clause
8 to an extension of EU competence through Article 352, as it
now is, and we want to check that in some way, without legislating
for it and thereby potentially creating these very grave hazards
of legal uncertainty, how would we do it?" The answer is:
this placeParliament. It is Parliament that constitutionally
holds Ministers to account. Parliament has to find ways of making
its accountability for what Ministers decide in Councilwith
regard to Article 352 or anything elsemore effective. If
we had truly robust, vigorous and detailed accountability in Parliament
of ministerial decision making in Council, there would be no need
for this at all, because we could trust Parliament to do the job.
Q111 Chair: But you know,
Professor Tomkins, that when you get on to the question I put
to Professors Bradley and Allan, decisions are taken that have
legislative effect that come from regulations made by the European
Commission direct. We have majority voting, which is not something
that we are even able to trace in terms of the decision-making
process, because it happens behind closed doors, and then there
is the judicial activism of the European Court itself. In all
these contexts, what you are really saying, I suspectif
I do not invite you to make a comment by a leading questionis
that the ultimate issue, as far as the supremacy or sovereignty
of Parliament is concerned, must be dependent on democratic consent,
and that in the rule of law, that should be the guiding principle,
and not some constitutionalism.
Professor Tomkins: Exactly. So
it depends on the ability of Parliament, which specifically means
this Housethe House of Commonsto hold Ministers
meaningfully to account for decisions that are taken in the national
name in Brussels or in Luxembourg.
Chair: Chris Kelly, did you want to ask
Chris Kelly: No.
Chair: Are there any further questions
that anyone would like to ask?
Professor Tomkins, thank you very much indeed,
and I thank all the other witnesses. I am glad to say that all
this is on record, and if I may say, I am grateful to Hansard
for the speed with which it puts the transcript on to the website
so that all witnesses are able to evaluate the position as we
move forward. Thank you all very much.
1 Jackson v Attorney General
 UKHL 56, para. 102. Back