Written Evidence from Professor Adam Tomkins,
John Millar Professor of Public Law, University of Glasgow
CLAUSE 18 OF THE BILL: PARLIAMENTARY SOVEREIGNTY
AND EU LAW
INTRODUCTION
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.
DEFINITION OF
PARLIAMENTARY SOVEREIGNTY
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.
CHALLENGES TO
PARLIAMENTARY SOVEREIGNTY:
(1) EU LAW
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.)
CHALLENGES TO
PARLIAMENTARY SOVEREIGNTY:
(2) COMMON LAW
RADICALISM
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.'
CONCLUSIONS
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
|
