Written evidence from Michael Dougan,
Dean of the Liverpool Law School and Professor of European Law,
University of Liverpool
PART 3 OF THE EUROPEAN UNION BILL (PARLIAMENTARY
SOVEREIGNTY CLAUSE)
1. The Explanatory Notes observe (at para 106)
that Clause 18 has been included in the EU Bill
"to address concerns that the doctrine
of Parliamentary sovereignty may in the future be eroded by decisions
of the courts". The Explanatory Notes continue to state
(also at para 106) that Clause 18
"will provide clear authority which can
be relied upon to counter arguments that EU law constitutes a
new higher autonomous legal order
which has become an integral
part of the UK's legal system independent of statute".
2. It should be observed from the outset that
the "concerns"
referred to in para 106, so far as concerns the domestic status
of EU law, find no objective basis in UK constitutional law and
no real support within mainstream scholarly opinion. In fact,
the argument that EU law could somehow oust Parliamentary sovereignty
as the cornerstone of the UK constitutional order - particularly
when expressed in terms of a slow-burning judge-led plan to recognise
the EU as a self-authenticating entity whose authority is substituted
for that of the UK (or any other Member State) - is essentially
political in nature. It is associated, in particular, with a
Eurosceptic rhetoric lacking any persuasive evidential foundation.
Indeed, the "arguments"
referred to in para 106 of the Explanatory Notes are heard, most
commonly, from Eurosceptic politicians and popular commentators.
They certainly do not emanate from the EU itself: the amendments
introduced by the Treaty of Lisbon have clarified beyond any credible
doubt that the EU is an organisation of purely derived authority
and strictly limited competences. Nor can those
"arguments" be attributed to the
UK judiciary, or even understood as a vision of the UK constitutional
system to which the UK judges have shown themselves in any degree
sympathetic.
3. There is a strong consensus among legal experts
that EU law was and remains incorporated into UK law by virtue
of an Act of Parliament. Doctrines such as the duty of consistent
interpretation (the obligation of national courts to interpret
national law, as far as possible, in conformity with EU legislation),
the principle of direct effect (the capacity of a provision of
EU law to produce cognisable legal effects within the national
system) and the principle of supremacy (the preference given to
EU law where national law is incompatible with directly effective
EU provisions) all apply within the UK thanks to the Parliamentary
mandate created by the European Communities Act 1972, as interpreted
by the UK courts in landmark rulings such as R v Secretary
of State for Transport, ex parte Factortame (No 2) [1990]
3 WLR 818 and R v Secretary of State for Employment, ex parte
Equal Opportunities Commission [1995] 1 AC 1.
4. On the basis of that mandate, the UK courts
will interpret UK legislation in conformity with our EU obligations
and will disapply UK legislation if it conflicts with directly
effective EU law. The requirement that directive effective EU
law enjoys supremacy in the event of an irreconcilable conflict
with national law is a highly significant practical reality within
the UK - but it does not take effect in some autonomous manner,
directly under the authority of the European Union or the European
Court of Justice, independently of or despite the will of Parliament
itself. Its fundamental constitutional basis remains the principle
of Parliamentary sovereignty.
5. For that reason, as observed by Lord Denning
in Macarthys Ltd v Smith [1979] 3 All ER 325, Parliament
remains free clearly and explicitly to derogate from EU law (however
unlikely that is to happen in reality, given the high political
costs such a course of action would inevitably entail). Parliament
also remains entitled ultimately to repeal the European Communities
Act 1972 altogether (as would happen in the event of the UK's
voluntary withdrawal from the EU). Short of such steps, the UK
courts will assume that Parliament did not intend to repudiate
the UK's obligations under EU law; and will thus pursue the appropriate
interpretation or, if that is not possible, the necessary disapplication
of the relevant legislation. As one would expect, the UK courts
have thus crafted a careful balance between the integrity of the
UK constitutional system (on the one hand) and the demands of
EU membership (on the other hand) which is entirely appropriate
for our mature legal and political order.
6. It is true that, within the space which lies
between faithful implementation of the European Communities Act
1972 (on the one hand) and the theoretical possibility of a future
Parliamentary derogation from EU law (on the other hand), some
judges have explored the implications of rulings such as Factortame,
when viewed in their broader constitutional context alongside
other major domestic developments (such as enactment of the Human
Rights Act and of the Devolution Acts), for the common law understanding
of Parliamentary sovereignty. Perhaps the most famous of those
judicial reflections is the judgment of Laws LJ in Thoburn
v Sunderland City Council [2002] 4 All ER 156, in which he
suggested a distinction between
"ordinary" statutes and a special
class of "constitutional
statutes", with the latter being exempt from the usual doctrine
of implied repeal, such that the relevant measures can only be
abrogated by clear and express Parliamentary language.
7. Such an analysis - even if one accepted it
to reflect the current state of the common law - is neither uniquely
concerned with the status of EU law within the UK nor at all incompatible
with the doctrine of Parliamentary sovereignty per se. Indeed,
as Laws LJ stated (at para 69 of his judgment in Thoburn),
"[t]he fundamental legal basis of the
United Kingdom's relationship with the EU rests with the domestic,
not the European, legal powers". If the common law were
in the future to evolve in a direction that recognised the existence
of certain limits to the principle of Parliamentary sovereignty
as a matter of UK constitutional law, such restrictions
are far more likely to emerge in fields such as the fundamental
rights and liberties of the citizen, than as regards the status
of EU law within the UK legal order (consider, e.g. the House
of Lords' ruling in Jackson v Attorney General [2005] UKHL
56). Indeed, insofar as the UK courts have toyed with the idea
that the common law may itself impose certain inherent constraints
upon Parliamentary sovereignty in the context of EU law, it has
been to leave open the entirely hypothetical possibility of recognising
limits to the degree that Parliament has authorised, or
may in the future authorise, the supremacy of EU law within the
UK (consider, e.g. Thoburn v Sunderland City Council [2002]
4 All ER 156; Gouriet v Secretary of State for Foreign and
Commonwealth Affairs [2003] EWCA Civ 384).
8. In short: there are no reasonable grounds
for arguing that Parliamentary sovereignty as the conceptual foundation
stone of the UK constitution is threatened by the EU or by the
approach of UK judges towards the status of EU law within the
national legal system. Clause 18 should therefore be seen as
a mere codification of the constitutional status quo. It is a
legally unnecessary provision, but one which does no constitutional
harm, and could indeed serve a potentially valuable political
purpose, i.e. insofar as it helps the Government and other mainstream
political opinion to counter rhetorical (Eurosceptic) claims that
EU law might surreptitiously oust UK sovereignty. For the same
reasons, it is difficult to see how / why Clause 18 could / should
have any appreciable substantive effect upon the current practice
of the UK courts towards the interpretation and application of
EU law within the national legal system.
9. The terms of reference for the present European
Union Bill Inquiry also raise the question of consistency between
Clause 18 (on the one hand) and Declaration 17 annexed to the
Final Act of the IGC which adopted the Treaty of Lisbon (on the
other hand). The latter Declaration essentially recalls that,
in accordance with the caselaw of the European Court of Justice,
EU law has primacy over national law under the conditions laid
down by that caselaw.
10. It should be stressed that the issue of consistency
between Clause 18 and Declaration 17 should not be considered
a relevant concern for the UK or indeed for the EU.
11. It is well known that the ECJ has developed
(and is perfectly entitled to hold) its own perspective on the
principle of supremacy. Under that perspective, the principle
of supremacy is an unconditional one, subject only to the limits
recognised by EU law itself (for example, for the safeguarding
of legal certainty in favour of individuals whose interests might
be unfairly prejudiced by the enforcement of directly effective
EU provisions).
12. That perspective is not shared by the vast
majority of Member States, in particular, under the jurisprudence
of their national supreme courts. For the latter, the principle
of supremacy takes effect only by virtue of national law and is
therefore subject to whatever limits are determined under such
national law.
13. Those limits differ from Member State to
Member State. For example, the German Federal Constitutional
Court recognises the supremacy of EU law but insists that the
latter remains subject to various constitutional safeguards based
on ensuring (first) that EU law offers a level of fundamental
rights protection equivalent to that guaranteed under the German
Basic Law; (secondly) that the EU does not act ultra vires the
Treaties, by perpetrating an obvious violation of the limits of
its attributed powers, so as to bring about a structural shift
in the balance of competence between the EU and its Member States;
and (thirdly) that EU action does not endanger the fundamental
constitutional identity of Germany, by compromising the capacity
of the democratically legitimate organs of state to shape the
circumstances of life for their citizens in various policy fields.
14. Within the UK, the comparable / relevant
limits imposed upon the principle of supremacy as a matter of
national law are those which derive essentially from the doctrine
of Parliamentary sovereignty, i.e. the possibility that Parliament
may clearly and expressly derogate from its EU obligations and
ultimately repeal the European Communities Act 1972. Despite
the dicta in cases such as Thoburn and Gouriet,
referred to in para 7 above, there is as yet no clear authority
to affirm or illustrate the existence of additional common law
qualifications to the principle of supremacy within the UK legal
order (akin to the approach of the German Federal Constitutional
Court).
15. In short: Declaration 17 reflects the position
of the ECJ within its proper sphere of competence, i.e. the derived
legal order of the EU itself. Clause 18 reflects the position
of the UK within its own sphere of competence, i.e. the legal
order of the UK as a sovereign state under international law.
The pertinent question is not really one of consistency between
Declaration 17 and Clause 18 - though it should be observed, for
the avoidance of doubt, that the latter provision of itself contains
no contradiction of the ECJ's caselaw such as would place the
UK in breach of its obligations under the EU Treaties. A better
understanding of the position would be to think in terms of an
ongoing interaction between two distinct legal orders - EU and
UK - whose creative tensions and exchanges are inherent in the
very nature of the EU as a complex legal and political entity.
16. I should like to add a brief and rather obvious
concluding observation. There is a certain irony in the drafting
of a Bill which purports to enshrine the principle of Parliamentary
sovereignty so as to safeguard it from the entirely fictitious
prospect of an attack from either the EU itself or the UK's own
judges on the basis of EU law; while simultaneously launching
a direct challenge to that very same principle of Parliamentary
sovereignty as a matter of internal UK constitutional law, i.e.
by proposing a system of "referendum
locks" which purport to limit the competence of future Parliaments
to enact legislation relating to specified EU matters in various
circumstances. If there is a real concern about the doctrine
of Parliamentary sovereignty that needs to be addressed during
the passage of this Bill, it surely consists in an attempt by
the Government to persuade the current Parliament to bind its
successors in a manner which runs counter to accepted understandings
of our constitutional order.
November 2010
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