Written evidence from Trevor Hartley,
Professor of Law Emeritus, London School of Economics
THE EUROPEAN UNION AND BRITISH SOVEREIGNTY
SUMMARY
This memorandum deals with the effect of the EU Treaties
and EU legislation on the sovereignty of the British Parliament.
It concludes that parliamentary sovereignty (supremacy) is unaffected
by them.
1. I am a Professor of Law Emeritus at the London
School of Economics, where I have taught courses on European Union
Law for many years. I have published extensively in the field.[3]
2. I start with two self-evident propositions.
First, the United Kingdom constitution owes nothing to European-Union
law or to international law: it is the product of British history.
Secondly, European Union law is either contained in the Union
treaties or is based on them; and those treaties derive their
validity from international law.
3. Since the European-Union treaties are treaties
and nothing more, their effect in the United Kingdom legal system
can be no greater than that accorded to treaties under the United
Kingdom constitution.[4]
4. The effect of treaties within the United Kingdom
legal system has been considered by the courts on a number of
occasions. As is well known, a treaty does not as such have the
force of law in the United Kingdom.[5]
In order to give it such effect, Parliament must pass legislation.
The same is true with regard to legislation adopted by an international
or supranational organization (such as the European Union) of
which the United Kingdom is a member. Without such legislation,
a treaty or such legislation will not constitute law in the United
Kingdom.[6]
5. In view of this, when the United Kingdom first
joined the European Union (then the European Communities), Parliament
passed the European Communities Act 1972, section 2 of which gave
legal effect in the United Kingdom to such provisions of the EU
Treaties and EU legislation as were required by EU law to be applied
in the Member States. When new treaties were agreed, new legislation
had to be adopted.
6. As far as the United Kingdom is concerned,
the effect of the entire EU legal system depends on a series of
Acts of Parliament. Without them, EU law would have no legal effect
in the United Kingdom. The European Court of Justice may take
a different view, but, in the British courts, the legal effect
of EU law in the United Kingdom depends on United Kingdom law
and not on EU law.
7. For this reason, United Kingdom law determines
the nature of the relationship between United Kingdom law and
European Union law: it decides which will prevail in the event
of a conflict and whether and how that relationship can be changed.
8. Section2(1) of the European Communities Act
1972 provides for EU law to have effect in the United Kingdom
legal system, and section 2(4) purports to entrench the position
of EU law by providing that future Acts of Parliament are to have
effect subject to Union law. It states that
"any enactment passed or to be passed
… shall be construed and have effect subject to the foregoing
provisions of this section." The
"foregoing provisions" of course
include section 2(1).
9. However, it is a well-known provision of the
United Kingdom constitution that Parliament is constitutionally
unable to limit its future powers: any such limitation is invalid
and ineffective.
10. For this reason, section 2(4) could not deprive
Parliament of the power to legislate contrary to EU law. Section
2(4) should, therefore, be read as laying down no more than a
rule of interpretation - though it should be regarded as a strong
rule of interpretation - that, unless a contrary intention is
expressly stated, the courts are to assume that future Acts of
Parliament are intended to be subject to directly effective EU
law. Where a contrary intention is expressly stated, however,
the Act of Parliament will prevail.
11. This point was made by Lord Denning MR as
long ago as 1979 when he said:[7]
If the time should come when our Parliament deliberately
passes an Act with the intention of repudiating the Treaty or
any provision in it or intentionally of acting inconsistently
with it and says so in express terms then I should have thought
that it would be the duty of our courts to follow the statute
of our Parliament. ... Unless there is such an intentional and
express repudiation of the Treaty, it is our duty to give priority
to the Treaty.
12. So, unless Parliament expresses a contrary
intention, directly effective EU law prevails over United Kingdom
law. But if Parliament does express such an intention, and does
so clearly, then the Act of Parliament will prevail. Moreover,
Parliament could always repeal the European Communities Act, in
which case EU law would have no direct effect at all in the United
Kingdom.
13. The leading case today is Thoburn v.
Sunderland City Council,[8]
in which Lord Justice Laws said:
[T]here is nothing in the [European Communities Act]
which allows the [European Court], or any other institutions of
the EU, to touch or qualify the conditions of Parliament's legislative
supremacy in the United Kingdom. Not because the legislature chose
not to allow it; because by our law it could not allow it. That
being so, the legislative and judicial institutions of the EU
cannot intrude upon those conditions. The British Parliament has
not the authority to authorise any such thing. Being sovereign,
it cannot abandon its sovereignty. Accordingly there are no circumstances
in which the jurisprudence of the [European Court] can elevate
Community law to a status within the corpus of English domestic
law to which it could not aspire by any route of English law itself.
This is, of course, the traditional doctrine of sovereignty. If
it is to be modified, it certainly cannot be done by the incorporation
of external texts. The conditions of Parliament's legislative
supremacy in the United Kingdom necessarily remain in the United
Kingdom's hands.
14. He went on to make clear that the relationship
between the United Kingdom and the European Union depends on United
Kingdom law, not European Union law.
15. For this reason, clause 18 of the European
Union Bill, which states that it is only by reason of an Act of
Parliament that EU law applies in the United Kingdom, is entirely
in accord with the constitutional position in the United Kingdom.
16. The position is similar in other Member States.
In Germany, the Federal Constitutional Court (Bundesverfassungsgericht)
has made clear on a number of occasions that the German Constitution
remains supreme law in Germany; European Union law applies in
Germany only to the extent permitted by the Constitution.[9]
In 2005, the Federal Constitutional Court held that the German
legislation giving effect to the EU third-pillar framework decision
on the European Arrest Warrant[10]
was invalid because it was contrary to the constitutional provision
forbidding the extradition of German citizens.[11]
The Danish Supreme Court[12]
and the Polish Constitutional Court have given similar rulings.[13]
I believe that the position is the same in all the Member States.
The fundamental principle - the starting point of legal analysis
- is the national constitution. EU law applies only by reason
of, and to the extent permitted by, the national constitution.
The United Kingdom is in no way out of line on this question.
17. Of course, the European Court takes a different
view. There are thus two ways of looking at the question: that
of the European Court and that of the Member-State courts. The
former reflects the position in Union law and would prevail at
the Union level; the latter reflects the position in Member-State
law and would prevail at the national level.
18. Declaration 17 attached to the Treaty of
Lisbon provides:
The Conference recalls that, in accordance with the
well settled case law of the Court of Justice of the European
Union, the Treaties and the law adopted by the Union on the basis
of the Treaties have primacy over the law of the Member States,
under the conditions laid down by the said case law.
The precise status of such declarations is controversial,
but in any event they cannot have greater effect than a provision
in the treaty to which they are attached. As a treaty provision,
it would be subject to the limitations set out in paragraph 4,
above: it could not affect the constitutional position under United
Kingdom law. The sovereignty of the United Kingdom is not limited
by it. All the Declaration does - as the Declaration itself recognizes
- is to restate the position under European Union law, as laid
down by the European Court.
19. The result is that the position under Union
law differs from the position under national law. Under United
Kingdom law, the powers of the British Parliament remain undiminished.
Provided it makes its intention clear, Parliament can legislate
contrary to Union law. It can restrict or abolish the power of
the European Court to give judgments that are legally binding
in the United Kingdom. It can abolish, in whole or in part, the
power of United Kingdom courts to refer questions to the European
Court. If the Act was appropriately drafted, there would be no
way in which its effectiveness could be challenged in the courts
of the United Kingdom.
20. At the EU level, the position would be different.
Proceedings could be brought against the United Kingdom before
the European Court and fines imposed, though it is hard to see
how the United Kingdom could be forced to pay these fines if it
did not want to. The final outcome would depend on political considerations.[14]
November 2010
3 Publications relevant to
the present subject include: T. C. Hartley, The Foundations
of European Union Law (Oxford University Press, Oxford, 7th
Edition, 2010); Trevor C. Hartley, European Union Law in a
Global Context (Cambridge University Press, Cambridge, 2004);
Trevor C. Hartley, Constitutional Problems of the European
Union (Hart Publishing, Oxford and Portland, Oregon, 1999);
Hartley, "The Constitutional Foundations of the European
Union" (2001) 117 Law Quarterly Review 225; Hartley,
"International Law and the Law of the European Union-A Reassessment"
[2001] British Year Book of International Law 1. Back
4
In the past it was sometimes suggested that the EU Treaties had
become "constitutionalized" and were thus something
more than treaties. Not much is heard of this theory today. For
a criticism of it, see Hartley, "The Constitutional Foundations
of the European Union" (2001) 117 Law Quarterly Review 225
at pp. 226-233. Back
5
The citation of authority for this proposition is hardly necessary,
but if it is needed it can be found in Attorney General for
Canada v. Attorney General for Ontario [1937] AC 326 (PC). Back
6
At most, it will have effect as an aid to the interpretation of
existing United Kingdom legislation. See Salomon v. Commissioners
of Customs and Excise [1967] 2 QB 116 (CA). Back
7
Macarthys Ltd v. Smith [1979] 3 All ER 325 at 329. See
also per Lawton LJ at 334. In subsequent proceedings in the same
case, Lord Denning made the point even more forcefully: see [1981]
1 All ER 111 at 120. For an earlier statement by Lord Denning,
see Shields v. E. Coomes (Holdings) Ltd [1979] 1 All ER
456 at 461-2, [1978] 1 WLR 1408 at 1414, CA. Back
8
[2002] EWHC 195 Admin; [2002] 3 WLR 247 (Divisional Court). Back
9
Bundesverfassungsgericht, decision of 12 October 1993,
reported in English as Brunner v. European Union Treaty
[1994] 1 Common Market Law Reports 57. See in particular,
paragraph 55 of the CMLR text. For the German text, see 2 BvR
2134/92 and 2 BvR 2159/92. The background and significance of
the case are explained in Foster, "The German Constitution
and EC Membership" [1994] Public Law 392. Back
10
Council Framework Decision 2002/584/JHA, OJ 2002, L190/1. Back
11
Decision of 18 July 2005, 2 BvR 2236/04: see http://www.bundesverfassungsgericht.de/en/decisions/rs20050718_2bvr223604en.html
(English translation). For a comment, see Hinarejos Parga, (2006)
43 CMLRev. 583. Back
12
Carlsen v. Rasmussen, Danish Supreme Court, judgment of
6 April 1998, Case I 361/1997, [1999] 3 CMLR 854 (English translation). Back
13
Case K 18/04. English translation and summary: http://www.trybunal.gov.pl/eng/summaries/wstep_gb.htm.
See especially at paragraphs 6-16 of the English-language summary. Back
14
For the way in which political considerations can override the
law in the European Union, one only has to look at the reaction
of the Union to France's deportation of Roma immigrants from other
Member States. This was almost certainly a violation of EU law,
which permits such deportation only on the basis of the personal
conduct of the individual concerned. Initially, the EU Justice
Commissioner, Ms Reding, took a strong line and threatened France
with legal proceedings in the European Court. However, she had
to back down when it appeared that she did not enjoy political
support among her fellow Commissioners. Back
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