The EU Bill and Parliamentary sovereignty - European Scrutiny Committee Contents

Written evidence from Philip Allott, Professor Emeritus of International Public Law, Cambridge University Fellow, Trinity College, University of Cambridge

Clause 18

1. The word "only" is incorrect and should be deleted.

(1) Direct applicability and direct effect of EU law in the United Kingdom are a product of three things—(a) our international legal obligations (the Accession Treaty, and subsequent treaties); (b) EU law; and (c) parliamentary legislation (the European Communities Act 1972, as amended).

(2) The 1972 Act makes it clear that it is designed to produce its effect in conjunction with EU law. This is the meaning of the phrase "as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom" in Section 2(1) of that Act. This is to be read with Section 3 of the Act which makes the substance of EU law (including the nature of direct applicability and direct effect) a matter to be determined in accordance with EU law and its procedures, of which our courts are required to take judicial notice.

(3) As a matter of British constitutional law, it would not be open to Parliament to create a new source of law in the United Kingdom (which is the nature of the direct applicability and direct effect of EU law) by a mere Act of Parliament, except to the extent that its doing so is recognised by the courts as having achieved that effect. The power and the limits of an Act of Parliament are a combined product of basic inherited constitutional principles and the determinations of the courts. It so happens that the British courts ultimately chose to accept EU law as a new source of law, beyond statute and common law, (Factortame, inter al.), giving effect to their understanding of the factors set out in (1) and (2) above. They might well have decided otherwise.

2. The legal status of Clause 18 is obscure. It has no evident legislative effect. It is essentially declaratory in character. It cannot itself finally determine the constitutional problem of the legal basis of direct applicability and direct effect. That matter can only be finally determined by the Supreme Court and the European Court.

3. Being merely a provision in an Act of Parliament, Section 18 would be as vulnerable to amendment or repeal as any other provision in an Act of Parliament. The provisions of the 1972 Act are less vulnerable, given the complex constitutional framework set out above. It is no longer clear that a mere provision in an Act of Parliament could undo the direct applicability and direct effect of EU law. That question would also be a matter for the Supreme Court and the European Court finally to determine.


4. The phrase "to make provision about the means by which directly applicable or directly effective European Union law has effect in the United Kingdom" is inappropriate and should be redrafted as "to make provision concerning the direct applicability and direct effect of European Union law in the United Kingdom".

5. The whole point of direct applicability and direct effect (affirmed in countless decisions of the European Court and the British courts) is that there must be no "means" of implementing them. They take effect as such and automatically within the United Kingdom.

6. This suggests that the phrase in question is intended to refer to Clause 18. But (a) Clause 18 does not "make provision" about any such thing; and (b) it does not have any legal effect whatsoever on the status of EU law as a source of law in the UK.

7. The Supreme Court or the European Court might be interested to read the text of a future Section 18. But they might also ignore it entirely—or they might give it their own interpretation which, one may hope, would be in line with the analysis set out above in relation to Clause 18.

8. It follows that the phrase in question in the Long Title is misleading. Although a Long Title has no legislative effect, it should not contain anything that is misleading about the legislation that it summarises.


9. We should have objected to Article 235 of the EC Treaty (now, more or less, Article 352 of the TFEU) at the time of UK accession. Much has been done over the years by the EU institutions and by the European Court to mitigate its awfulness. The provisions of Clause 8 may be very difficult to apply in practice—and could lead to much litigation in the UK and in the European Court. But they certainly address a notorious problem.

10. The problem of Article 235/352 is that it makes explicit provision—and unconscionably generous provision in favour of the Council—in relation to one of the most subtle and difficult of constitutional matters—the question of implied powers—what are the powers of an organ of the constitution which are not explicitly conferred, but which prove to be incidentally necessary, from time to time, in the implementation of explicit powers?

11. Every constitution must deal with this question. The best solution has been the American (and also, in effect, the British) solution.

"Let the end be legitimate, let it lie within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but which consist with the letter and spirit of the constitution, are constitutional.".-. Chief Justice Marshall, McCulloch v. Maryland (US Supreme Court, 1819).

12. Through the assertion of this common-law constitutional principle, the US Supreme Court created a broad framework for countless subsequent, often highly controversial, decisions about implied powers. The position has been essentially the same in the United Kingdom, albeit in the absence of a written constitutional document, through the medium of coundess cases decided, as necessary, by the courts.


13. The Bill has a whiff of revolution about it. It is a Boston Tea Party gesture against creeping integration. As such, one might say, it is twenty years too late.

With an elegance of drafting reminiscent of the 1972 Act, it seems to echo Luther's "here I stand". Is the Bill compatible with our international treaty obligations and EU law?

14. It is a principle of EU law that member states must make their own constitutional and administrative arrangements for participation in the EU institutions, subject always to their acting in conformity with EU law. The UK led the way in involving Parliament in the scrutiny of proposed EU legislation—and that precedent has been followed in many other member states. The reports of the UK parliamentary scrutiny committees have been recognised as major contributions to the general EU pre-legislative process.

15. All the leading member states have struggled with the problem of how to involve their parliaments in the functioning of the EU system. The German Federal Constitutional Court has insisted, on several occasions, that no development in the EU must be allowed to undermine the fundamental place of the German parliament, as the immediate voice of the people, in the overall constitutional structure of the Federal Republic.

16. So far as I know, no other member state has anything remotely approaching the degree of parliamentary involvement which the Bill would create, albeit only in relation to a particular kind of EU law provision—those provisions that can, piecemeal, increase the legal powers of the Union and its institutions.

17. Needless to say, if this approach were to be extended to other kinds of EU provisions, or if other member states, in any great number, adopted the same kind of regime, the EU law-making process would grind to a halt. Even within the United Kingdom, one might expect that the new procedures would give rise to much extra work—and some litigation.

18. In the time available, I have not been able to check every one of the very many Treaty provisions which are to be subjected to these new procedures. So far as I can tell, they are all provisions in which the United Kingdom, represented by ministers in the Council, has the power to agree or not to agree to the adoption of a proposed legal act. The Bill would, therefore, not increase or decrease the UK's powers under EU law in relation to such legal acts. If this is so, then the Bill is covered by the principle noted above—that it is for each member state to determine its domestic procedures for participating in EU institutions.

19. If a personal comment may be permitted, one may hope that this legislation will not divert attention from the great constitutional challenges posed by the present deplorable state of functioning of the EU—

(a)  the absence of any European democratic politics, given the failure of the European Parliament to give rise to a Europe-wide democratic forum integrated into national politics;

(b)  the marginalisation of national parliaments in relation to policy-making and law-making;

(c)  the spectre of taxation without representation, given that the EU budget is determined obscurely and remotely from the taxpayers who pay for it; and

(d)  most generally, the absence of any kind of constitutional unity embracing the EU and the member states. On the contrary, through a kind of acquis anticommunautaire of recent years, the total system has become more grossly anomalous than ever—with the governments of member states seeing participation in the Council as diplomacy by other means, pursuing narrow national interests, and with the vast statist leviathan of the institutional EU apparently beyond redemption, and terminally incapable of projecting European power globally—a fundamentally disintegrated over-integration—a monstrous constitutional paradox.

20. It may be that something more than a whiff of revolution is overdue.

16 November 2010

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