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
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
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 entirelyor 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 practiceand
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 provisionand unconscionably generous provision
in favour of the Councilin relation to one of the most
subtle and difficult of constitutional mattersthe question
of implied powerswhat 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,
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 legislationand
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
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 provisionthose 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 workand 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 abovethat 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 everwith 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 globallya fundamentally disintegrated over-integrationa
monstrous constitutional paradox.
20. It may be that something more than a whiff of
revolution is overdue.
16 November 2010