The EU Bill and Parliamentary sovereignty - European Scrutiny Committee Contents

Written evidence from Michael Dougan, Dean of the Liverpool Law School and Professor of European Law, University of Liverpool


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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