The EU Bill and Parliamentary sovereignty - European Scrutiny Committee Contents

Written Evidence from Professor Adam Tomkins, John Millar Professor of Public Law, University of Glasgow



1.  This evidence is submitted to the House of Commons European Scrutiny Committee as part of its inquiry into the European Union Bill. This evidence is concerned principally with Clause 18 of the Bill.

2.  The evidence is submitted by Professor Adam Tomkins, John Millar Professor of Public Law in the University of Glasgow. I am an academic specialising in constitutional law. Part of the evidence is drawn from my publications: in particular, A Tomkins Public Law, (Oxford University Press, 2003) and C Turpin and A Tomkins, British Government and the Constitution (Cambridge University Press, 6th ed 2007).

3.  In addition to being a Professor of Law at Glasgow I am also a legal adviser to the House of Lords Select Committee on the Constitution. This evidence is submitted solely in a personal capacity. Nothing written here is to be taken as representing the view of any member, committee or official of the House of Lords.


4.  Dicey's definition of parliamentary sovereignty (The Law of the Constitution (1885), pp 39-40) was as follows:

The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament . . . has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.

5.  The sovereignty of Parliament is a doctrine whose cardinal importance to the British constitution would be difficult to exaggerate. As the "keystone" of the constitution (as Dicey called it), what is meant is that the doctrine is no less than "the central principle" of the system, "on which all the rest depends" (to quote from the OED).

6.  What the doctrine establishes is the legal supremacy of statute. It means that there is no source of law higher than - ie more authoritative than - an Act of Parliament. Parliament may by statute make or unmake any law, including a law that is violative of international law or that alters a principle of the common law. And the courts are obliged to uphold and enforce it.

7.  There is an issue about what is the legal source of the rule that Parliament is sovereign. This matter is highly pertinent to clause 18 of the EU Bill and I address it in detail later in this evidence.

8.  It may assist the Committee if I declare at this point that, as an academic constitutional lawyer and as a citizen and voter I like the doctrine of parliamentary sovereignty. Unlike several of my colleagues in the world of constitutional law I have never argued that the doctrine of parliamentary sovereignty should be replaced with a power whereby the courts may quash legislation if they rule it to be unconstitutional or otherwise illegal. While I seek to advocate a strong and robust role for the courts in enforcing the rule of law, I am not of the view that the courts should be permitted to quash Acts of Parliament. I also see myself, for what it is worth, as being pro-European. While I am deeply critical of a number of aspects of the law and politics of the European Union (and I have been particularly critical of some of the ECJ's case law), I do consider that it is in the United Kingdom's clear interest to remain a committed member of the EU.


9.  When the United Kingdom joined the European Community (now the European Union) in 1972 it was already an established principle of the Community legal order that laws issuing from it, within the areas of Community competence, should have supreme authority in all the Member States. To this end the European Court of Justice insisted that the Member States had, in transferring powers to the Community, necessarily limited their own sovereign authority (see Case 26/62 Van Gend en Loos [1963] ECR 1 and Case 6/64 Costa v ENEL [1964] ECR 585). Accordingly, the European Communities Act 1972 provides that UK legislation - including Acts of Parliament - is to have effect subject to authoritative provisions of Community law.

10.  The most important instance to date of this matter being litigated in the courts is the Factortame saga. The background is as follows. Parliament enacted the Merchant Shipping Act 1988, Part II of which specified requirements for the registration of fishing vessels as British (whose catches would then count as part of the British quota). The Act stipulated that only British-owned vessels managed and controlled from within the United Kingdom could be registered as British fishing vessels. As a result ninety-five fishing vessels, previously registered as British under an Act of 1894 but managed and controlled from Spain or owned by Spanish nationals, would not qualify for registration under the 1988 Act. The owners of these vessels sought judicial review, claiming a declaration that the 1988 legislation should not apply to them.

11.  The Divisional Court decided to obtain a preliminary ruling from the European Court of Justice under (what is now) Article 267 TFEU on the questions of EU law arising in the case. Since there would be a delay before the ruling of the Court of Justice was given and the owners of the fishing vessels would suffer hardship if obliged to refrain from fishing in the meantime, the Divisional Court granted interim relief, ordering that Part II of the 1988 Act should be "disapplied". In R v Secretary of State for Transport, ex parte Factortame (No 1) [1990] 2 AC 85 the House of Lords held that the Divisional Court had had no power, as a matter of English law, to make an interim order in such terms. The House of Lords then went on to consider whether an appropriate interim remedy might be available to the applicants as a matter of European law. Their Lordships decided that EU law on the matter was unsettled and accordingly sent a second reference to the Court of Justice.

12.  The ECJ held that a national court was obliged to set aside provisions of domestic law which might prevent rights in EU law from having full force and effect. The House of Lords then granted an injunction against the Secretary of State, requiring him to suspend the application of the requirements of British residence and domicile in the Merchant Shipping Act to nationals of other Member States: R v Secretary of State for Transport, ex parte Factortame (No 2) [1991] 1 AC 603.

13.  In this profoundly important decision, the House of Lords acknowledged that its obligation to comply with a principle of EU law as affirmed by the European Court of Justice required it to deny effect to the terms of an Act of Parliament. In the course of his opinion in Factortame (No 2) Lord Bridge made the following observations:

Some public comments on the decision of the European Court of Justice, affirming the jurisdiction of the courts of Member States to override national legislation if necessary to enable interim relief to be granted in protection of rights under Community law, have suggested that this was a novel and dangerous invasion by a Community institution of the sovereignty of the United Kingdom Parliament. But such comments are based on a misconception. If the supremacy within the European Community of Community law over the national law of Member States was not always inherent in the E.E.C. Treaty it was certainly well established in the jurisprudence of the European Court of Justice long before the United Kingdom joined the Community. Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. Under the terms of the Act of 1972 it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law … Thus there is nothing in any way novel in according supremacy to rules of Community law in those areas to which they apply …

14.  Academic opinion is divided on how this decision should be interpreted. There are perhaps two main camps, which may be dubbed the 'revolution view' and the "evolution view". Leading the former was the late Sir William Wade, who argued (in "Sovereignty: revolution or evolution?" (1996) 112 Law Quarterly Review 568) that a constitutional revolution had occurred because the House of Lords had recognised that the result of the European Communities Act 1972 was that future Parliaments were, unless and until they expressly repealed it, bound by its terms. Parliament remained sovereign in the sense that it retained the power expressly to repeal the 1972 Act (thereby necessitating, presumably, the United Kingdom's withdrawal from the European Union), but for as long as the United Kingdom continued to be a member of the European Union on the terms set out in the 1972 Act, the United Kingdom Parliament remained tied to the terms of that statute.

15.  An alternative, more evolutionary, set of views has been suggested by a variety of commentators, including Sir John Laws and Professor TRS Allan. Sir John Laws (a Lord Justice of Appeal) has argued as follows ("Law and democracy" [1995] Public Law 72, 89):

The effect is that section 2(4) of the European Communities Act falls to be treated as establishing a rule of construction for later statutes, so that any such statute has to be read (whatever its words) as compatible with rights accorded by European Law. Sir William Wade regards this development as "revolutionary", because in his view it represents an exception to the rule that Parliament cannot bind its successors. But I do not think that is right. It is elementary that Parliament possesses the power to repeal the European Communities Act in whole or in part (I leave aside the political realities); and the most that can be said, in my view, is that the House of Lords' acknowledgement of the force of European law means that the rule of construction implanted by section 2(4) cannot be abrogated by an implied repeal. Express words would be required. That, however, is hardly revolutionary: there are a number of areas where a particular statutory construction is only likely to be accepted by the courts if it is vouchsafed by express provision [as where a statute is said to exact taxes, impose criminal liability or to have retroactive effect]. Although Factortame … undoubtedly demonstrate[s] what may be described as a devolution of legislative power to Europe, it is no true devolution of sovereignty. In legal (though certainly not political) terms, the organs of European legislation may in truth be described, for so long as the Act of 1972 remains on the statute book, as Parliament's delegates; the law of Europe is not a higher-order law, because the limits which for the time being it sets to the power of Parliament are at the grace of Parliament itself.

16.  Professor Allan's challenge to Wade is slightly different. He attacks the jurisprudential basis of Wade's account of sovereignty. For Wade, the sovereignty of Parliament is ultimately a judicially recognised "political fact". And when the judges recognise that the political facts have changed, the meaning of sovereignty changes accordingly. So, for Wade, what the House of Lords recognised in Factortame (No 2) was that the political fact of sovereignty had changed - Parliament since 1972 legislates not in the splendid isolation of a supreme being but in a geo-political environment in which the United Kingdom is a loyal member of the European Union. Allan disputes this analysis on the basis that sovereignty should be seen, not as judicial recognition of political fact, but as a rule of the common law based on reason just like any other rule of the common law. For him, what occurred in Factortame (No 2), "far from any dramatic, let alone unauthorised, change", was that "the House of Lords merely determined what the existing constitutional order required in novel circumstances" ('Parliamentary sovereignty: law, politics, and revolution' (1997) 113 Law Quarterly Review 443, 445). As he recognises and, indeed, welcomes, the consequences of Professor Allan's analysis are potentially great (pp 448-9): "If it is possible to recognise limits on the power of Parliament to enact legislation which conflicts with [EU] law, even if only to the extent of requiring express wording, it is equally possible to countenance other limits on parliamentary sovereignty which reflect the demands of constitutional principle. Since the requirement of judicial obedience to statutes constitutes a principle of common law . . . its nature and scope are matters of reason, governed by our understanding of the constitution as a whole."

17.  This distinction between the "political fact" and "common law" schools of thought is directly relevant in terms of clause 18 of the European Union Bill, and I shall return to it later in this evidence.

18.  My own conclusions as to how Factortame (No 2) is best understood are as follows. As will be seen, I agree with Wade that the source of the doctrine of parliamentary sovereignty is "judicial recognition of political fact" rather than the common law simpliciter; but I do not agree with him that Factortame (No 2) was a revolutionary decision. What follows is adapted from Tomkins, Public Law (2003), chapter 4:

In order to examine exactly what the House of Lords decided in Factortame (No 2), and how it fits in to the doctrine of legislative supremacy, we must start with the terms of the European Communities Act 1972. The key provision is section 3(1). The House of Lords decided in Factortame that, in the light of the ruling from the ECJ, the applicants were as a matter of Community law entitled to the protection of interim relief. In other words, the House of Lords granted the remedy not in its capacity as a court of English law, but specifically in its capacity as a court empowered to determine questions of Community law. Now, from where did the House of Lords get its power to determine questions of Community law? The answer is section 3(1) of the ECA. Courts in the United Kingdom possess the power to determine questions of Community law for one reason and for one reason only: namely, because Parliament legislated so as to confer that power on them, in section 3(1) of the ECA.

On this reading, all the House of Lords did in Factortame was to enforce the will of Parliament as laid down in statute. Parliament legislated in 1972 that courts in the United Kingdom were to enforce Community law, and that what the House of Lords did. Factortame was a case in which, acting under instructions contained in the 1972 Act, the House of Lords enforced Community law, and the legislative supremacy of Acts of the United Kingdom Parliament has never been a doctrine of Community law: only of English law. The House of Lords did not take on a jurisdiction to enforce Community law because the European Court of Justice required that it do so, or because the House of Lords volunteered for it, but because Parliament legislated for it, in section 3(1). There was no revolution here. Factortame could be read as revolutionary only if it were read as a case decided under the rules of English law, and such a reading would be in grave error, as the opening paragraph of Lord Bridge's speech in the case shows. Lord Bridge explained perfectly clearly that, whereas Factortame (No 1) had been decided by the House of Lords in its capacity as a court of English law, the question in Factortame (No 2) was "whether Community law [has] invested us with . . . jurisdiction" to grant interim relief in certain circumstances.

What then are the implications of the decision for the doctrine of legislative supremacy? Recall that there are two limbs to the doctrine. The first is that Parliament may make or unmake any law whatsoever. Is this still the case? Does Parliament, post-Factortame, retain the power to make or unmake any law? The answer is absolutely, yes. There is nothing in Factortame to suggest that Parliament cannot make a law that is contrary to Community law. Parliament might have difficulties in having its law effectively enforced, but that is a separate issue and does not speak to Parliament's capacity to make law. The first limb of the doctrine of legislative supremacy is thus untouched by Factortame.

The second limb provides that nobody may override or set aside an Act of Parliament. Now, as a matter of English law this remains the case, but as a matter of European Community law it never was the case: from as long ago as 1964—eight years before the United Kingdom joined the Community—it was clear from the case law of the Court of Justice that in a conflict between national law and directly applicable or directly effective Community law, the latter would as a matter of Community law prevail over the former. As soon as the House of Lords (and all other courts in the United Kingdom) became empowered by section 3(1) of the ECA to determine questions of Community law, it was clear from reading the text of the 1972 Act alongside the pre-existing jurisprudence of the Court of Justice that it was no longer true that nobody in England could set aside an Act of Parliament.

To clarify: it remains the case that under English law nobody has the power to override or to set aside a statute, but it is no longer the case that English law is the only law that is applicable in England. Since 1 January 1973 there have been two legal systems operating in this country, not one, and the doctrine of the legislative supremacy of statute is a doctrine known to only one of those two systems. This is not a revolution: it is rather the incorporation of a new legal order into a very old country. European Community law is, moreover, a new legal order that is to be enforced by the same courts as enforce domestic law. They may be the same courts, but they are not enforcing the same law. The House of Lords is one court with two jurisdictions, one in domestic law (which does not allow the court to set aside a statute) and one in Community law (which in certain circumstances does). Thus, as these legal systems currently stand, the doctrine of legislative supremacy may be stated as follows: Parliament may make or unmake any law whatsoever, and under English law nobody may override or set aside a statute.

19.  Could Parliament reclaim the fullness of its sovereignty? Parliament retains its ultimate sovereignty as long as it has the power to terminate the application of EU law in the United Kingdom (and its overriding force) by repealing or further amending the European Communities Act 1972. It is hardly open to doubt that the Queen's courts would give effect to an Act of Parliament which was passed in the process of effecting a withdrawal from the Union.

20.  Meanwhile it is conceivable that Parliament might legislate deliberately in contradiction of a rule of EU law, perhaps even with the expressly stated purpose of negating the effect of the rule in the United Kingdom. A bill to this effect was introduced in Parliament in 2005 (the Food Supplements (European Communities Act 1972 Disapplication) Bill). The bill's long title stated that it was "to provide that a specified Community instrument relating to food supplements shall not have effect in the United Kingdom notwithstanding the provisions of the European Communities Act 1972". To this end, clause 1 of the bill provided that "Notwithstanding the provisions of the European Communities Act 1972 (a) Directive 2002/46/EC . . . on the approximation of the laws of the Member States relating to food supplements, and (b) any judgment of the European Court of Justice relating to the [directive], shall not have effect in the United Kingdom".

21.  If an Act were to be passed in terms such as these the courts could not refuse to apply it without asserting a power which our constitution has not hitherto accorded to them and to which no English court has yet laid claim. Should the issue arise, however, the response of the British courts cannot be predicted with certainty. (One thing is likely, however: the Commission would bring infringement proceedings before the Court of Justice against the United Kingdom (under Article 258 TFEU) and, if the United Kingdom ignored the Court's judgment, the country would be heavily fined under the penalty payment procedure of Article 260 TFEU. What would happen if the United Kingdom refused to pay such a penalty payment, insisting on its national sovereignty, is a question which has not yet arisen in the history of the European Union and which, in any event, cannot be answered by reference to law alone.)


22.  The past twenty years or so have seen a remarkable renaissance in what might be called common law radicalism. Common law radicals believe that the entire constitution, including the doctrine of the sovereignty of Parliament, is based on the common law: an example of this sort of thinking was provided above by Professor Allan's account of Factortame (No 2).

23.  In Jackson v Attorney General [2005] UKHL 56, [2006] 1 AC 262 a challenge was launched to the constitutional validity of the Hunting Act 2004 and the Parliament Act 1949. The case had nothing to do with EU law but is the most recent leading decision on the law of parliamentary sovereignty. It is directly relevant to a number of the issues raised in the Committee's call for evidence. Technically, the comments made in Jackson about the sovereignty of Parliament were obiter and, moreover, they were uttered in the context of litigation concerning statutes passed without the consent of the House of Lords. It may therefore be that they prove to be of little precedential value. That said, however, their Lordships' opinions do not expressly state that their comments about parliamentary sovereignty should apply only in the context of legislation passed under the Parliament Act procedure.

24.  Among the most interesting obiter comments in Jackson are the following from Lords Bingham, Steyn and Hope.

Lord Bingham: The bedrock of the British constitution is, and in 1911 was, the supremacy of the Crown in Parliament . . . Then, as now, the Crown in Parliament was unconstrained by any entrenched or codified constitution. It could make or unmake any law it wished. Statutes, formally enacted as Acts of Parliament, properly interpreted, enjoyed the highest legal authority.

Lord Steyn: We do not in the United Kingdom have an uncontrolled constitution . . . In the European context the second Factortame decision made that clear: [1991] 1 AC 603. The settlement contained in the Scotland Act 1998 also points to a divided sovereignty. Moreover, the European Convention on Human Rights as incorporated into our law by the Human Rights Act 1998 created a new legal order . . . 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. 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. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish. It is not necessary to explore the ramifications of this question in this opinion. No such issues arise on the present appeal.

Lord Hope: Our constitution is dominated by the sovereignty of Parliament. But parliamentary sovereignty is no longer, if it ever was, absolute . . . Step by step, gradually but surely, the English principle of the absolute sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified . . .

The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based . . .

Each of the two main parties has made use of the 1949 Act's timetable, and in subsequent legislation passed by both Houses each of these Acts has been dealt with in a way that has acknowledged its validity . . . The political reality is that of a general acceptance by all the main parties and by both Houses of the amended timetable which the 1949 Act introduced. I do not think that it is open to a court of law to ignore that reality . . .

Trust will be eroded if the [Parliament Act] procedure is used to enact measures which are, as Lord Steyn puts it, exorbitant or are not proportionate. Nevertheless, the final exercise of judgment on these matters must be left to the House of Commons as the elected chamber.

25.  Several comments may be made about these passages. First, as the contrast of approaches between Lord Bingham on the one hand and Lords Steyn and Hope on the other illustrates, their Lordships were far from unanimous in terms of their thoughts about sovereignty. For Lord Bingham, outwith contexts in which the European Union was relevant there was no difference between the doctrine of sovereignty as it stood in 1911 and the doctrine of sovereignty now. For Lords Steyn and Hope, by contrast, even if the sovereignty of Parliament persists as a "general" doctrine, it does so in a way that is heavily qualified both by statute and by the common law. For Lord Steyn, moreover, Dicey's account, while apparently accepted by Lord Bingham, is "out of place in the modern United Kingdom".

26.  Secondly, is there not something curious about the construction of Lord Steyn's argument? He cites three respects in which, in his view, the sovereignty of Parliament is now limited. These are: the United Kingdom's membership of the European Union, the devolution "settlement" of 1998, and the incorporation by the Human Rights Act of fundamental rights into domestic law. Each of these, it is to be observed, came about as a result of legislation. Yet from this starting point his Lordship goes on to state that the sovereignty of Parliament is a "construct of the common law", "created" by judges and alterable by them. Even if this is correct (and I submit below that it is incorrect) the conclusion does not follow from the evidence his Lordship cites. The changes he outlines were made through legislation by Parliament; not through common law adjudication by judges.

27.  Thirdly, two of Lord Steyn's descriptions are worth noting. First, he describes the devolution legislation of 1998 as pointing to 'a divided sovereignty'. It is not at all clear what this means. The Scottish Parliament, created by the Scotland Act 1998, which his Lordship cites, is anything but a sovereign legislature, as the Scotland Act makes abundantly plain. Moreover, the existence of the Scottish Parliament has done nothing to limit the legal power of the Westminster Parliament to legislate for Scotland, even on ostensibly devolved matters: see Scotland Act 1998, section 28(7). The political reality may for the time being be that the Westminster Parliament will not legislate for Scotland on devolved matters without the consent of the Scottish Parliament, but this behaviour results from a political agreement and has nothing to do with the legal principles that Lord Steyn is concerned with. Secondly, he describes the Human Rights Act as having created a "new legal order". This is obvious mimicry of the European Court of Justice, which in 1963 famously described the European Union as having created a "new legal order of international law", a new legal order that dealt with matters of national sovereignty, for example, differently from the way in which they were understood in ordinary international law. Again, however, is his Lordship's terminology not somewhat tendentious? The Human Rights Act seeks to balance Convention rights with parliamentary sovereignty, and seeks to ensure that the sovereignty of Parliament is preserved in the scheme of the Act. It is to be noted that Lord Steyn's dicta in Jackson were subsequently described as '"unargued and unsound", "historically false", and "jurisprudentially absurd" (R Ekins, 'Acts of Parliament and the Parliament Acts' (2007) 123 Law Quarterly Review 91, 103) and, moreover, that Lord Bingham seemed to ally himself with these criticisms in his 2007 Commemoration Lecture delivered at King's College London, in which he stated that Lord Steyn's comments 'did not bear on an issue which had to be decided in the case and therefore have no authority as precedent'.

28.  Fourthly, there is some difficulty in reconciling all of the statements that Lord Hope makes. He starts with the rather sweeping proposition that the rule of law is the "ultimate controlling factor on which our constitution is based". This sounds very much like the common law radicalism of Lord Steyn and others, but Lord Hope goes on to make two further comments, which seem significantly to dent the extent to which he can really believe what he says about the rule of law. First, he offers as a reason for the court holding that the Parliament Act 1949 is valid that each of the two main political parties has made use of the Act, that both Houses of Parliament have treated legislation made under the Act as valid, that the political reality is of a "general acceptance" of the Act's procedures and, moreover, that 'it is not open to a court of law to ignore that reality'. Secondly, and similarly, he states that the "final exercise of judgment" as to when the Parliament Act procedures may be used should be left to the House of Commons "as the elected chamber", not to a court of law. Now, if the constitution really were based on the rule of law as its "ultimate controlling factor", neither of these would be the case. Neither the "political reality" nor the judgment of the House of Commons would stand in the way of the court stating that the rule of law had been violated. The rule of law would trump both. As it is, Lord Hope holds that the rule of law has to be conditioned by - has to give way, even? - to political reality and to the Commons' democratic superiority.

29.  Finally, and related to the previous point, what is perhaps most important about Lord Hope's opinion is the reliance he places on political fact. This brings us back to what Sir William Wade wrote about the sovereignty of Parliament half a century before Jackson was decided (see 'The legal basis of sovereignty' [1955] Cambridge Law Journal 172). What is the source of the authority for the proposition that Acts of Parliament enjoy legal supremacy in the British constitution? Lord Steyn, Professor Allan and the common law radicals say that it is a rule of the common law, which, like any other rule of the common law, was created and may be altered by the courts. Sir William Wade and Lord Hope, however, take the view that its source lies in political fact - or, more precisely, in judicial recognition of political fact. As Wade argued, it was the political fact of Parliament's seventeenth-century victories over the Crown that the courts took into account when articulating the orthodoxy of parliamentary sovereignty. Similarly, the political facts of the United Kingdom's membership of the European Union and of its incorporation into domestic law of Convention rights may be recognised by the courts as conditioning the constitutional environment in which the doctrine of sovereignty now operates.

30.  Lord Bingham, in his 2007 Commemoration Lecture delivered at King's College London, to my mind correctly stated that it has been 'convincingly shown that the principle of parliamentary sovereignty has been recognised as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot, by themselves, change it.'


31.  For the above reasons, my principal conclusions for the Committee are as follows.

32.  The doctrine of the sovereignty of Parliament is better understood as having its legal source in judicial recognition of political fact than in the common law. The Bill's explanatory notes talk (para 8) of the "common law principle of Parliamentary sovereignty". It would be preferable for this to be corrected, so that both Government and Parliament are clear.

33.  European Union law is far from being the only contemporary challenge to the doctrine of parliamentary sovereignty. Human rights law and, indeed, the common law itself, also pose potent challenges. For Parliament to assert its legislative supremacy fully, it would have to deal with these challenges as well as with that posed by EU law. Clause 18 is silent as to these challenges. If anything, this may make the situation more fluid rather than less. Parliament addressing but one of the contemporary challenges to its sovereignty may be taken in some quarters as representing parliamentary acceptance (or even approval) of the other such challenges. It does not take much to imagine ingenious lawyers crafting arguments to the court to the effect that old concerns about parliamentary sovereignty need no longer detain us in the contexts of human rights or of the development of the common law as, when Parliament took the opportunity to legislate on sovereignty it chose to do so only in the context of the EU, leaving human rights law and the common law free. With this in mind, there is an argument that Parliament would be better advised either to legislate for sovereignty in the round or to leave the subject alone altogether. Partial legislation on sovereignty, such as clause 18, may yet be the most dangerous option of all.

34.  Even within the context of parliamentary sovereignty and EU law, the scope of clause 18 is severely limited. This is because it does nothing to stem the further growth of competence creep. While other provisions in the Bill address legislative transfers of competence and/or power, there is nothing in the Bill - and certainly nothing in clause 18 - which addresses the problem of the further development of EU law at the hands of the European Courts. Let us not forget that many of the doctrines of EU law that have posed the greatest challenge for parliamentary sovereignty find their origin not in the articles of the Treaties, nor even in European legislation, but in the case law of the ECJ. This is true, for example, of the doctrine of supremacy (Costa), of direct effect (Van Gend en Loos), of indirect effect (Marleasing), of State liability (Francovich and Factortame (No 3)), as well as many others. The law of European citizenship has been aggressively developed by the Court so as significantly to extend the reach of EU law. And the law pertaining to the Charter of Fundamental Rights may be about to be likewise developed by that Court. Indeed, the first signs are already emerging that this is precisely what will happen (see, eg, the Opinion of the Advocate General in Case C-34/09 Zambrano). Neither clause 18 nor any other provision in the Bill safeguards the United Kingdom from the further development of EU law by the ECJ.

35.  For all of these reasons, clause 18 as presently drafted may be seen as an opportunity missed. Parliamentary sovereignty is under considerable challenge from multiple sources. For those who seek its robust defence and protection, clause 18 falls substantially short of the mark.

36.  None of which is to say that Parliament would necessarily be acting wisely to legislate in forthright or comprehensive terms in defence of parliamentary sovereignty. Courts tend to be jealous in the protection of what they see as their rightful jurisdiction, and they do not generally react favourably to attempts to diminish it or to remove it from them. If Parliament is of the view that its sovereignty requires to freshly articulated and safeguarded in legislation, it would be well advised to proceed with great care and caution, lest the consequences of its actions come to be seen as the proverbial red rag to the bull.

November 2010

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