Written evidence from Professor Anthony
Bradley[17]
Clause 18 - Status of EU law dependent on continuing
statutory basis
1. The bulk of this paper deals with clause
18 of the Bill, although I add at the end a short comment on Part
1 of the Bill.
2. The Coalition Agreement included in chapter
13 (on the European Union) the statement that there should be
'no further transfer of sovereignty or powers over the course
of the next Parliament' and undertook to 'examine the case for
a United Kingdom Sovereignty Bill to make it clear that ultimate
authority remains with Parliament'.
3. Clause 18 of the Bill is the result of such
examination: see the statement by the Minister for Europe, David
Lidington, on 11 October: HC WS col 3. I consider it to be
an advantage that the clause does not use the term 'sovereignty'.
That word is much used in political debate and in academic writing
but its meaning is often not clear: see, for instance, the final
sentence of the Minister for Europe's statement on 11 October.
In referring to the practice of other member states in legislating
on EU law, and instancing Germany, Mr Lidington states that although
the other member states "have
a different constitutional framework, they have given effect to
EU law through a sovereign Act".
4 The term
"sovereign Act" as used by Mr Lidington
appears to confuse two meanings of the word 'sovereign'. (A) The
sovereignty of states is a basic principle in public international
law, referring to the criteria that determine whether a territory
is to be regarded as an independent state in its own right. It
is fundamental that a state may accept obligations in international
law by entering into treaties with other states, from which (it
must be assumed) the resulting benefits make up for the new obligations.
Treaty-making is the exercise of such sovereignty, and thereby
states may gain membership of international organisations. (B)
Within the United Kingdom, our constitutional law recognises the
sovereignty of Parliament. This is a quite different matter
from sovereignty in international law (the UK's sovereignty in
international law is exercised by Her Majesty's Government).
In very few states today (apart from the United Kingdom, there
are none in Europe) does the system of constitutional law provide
for a 'sovereign' legislature. Germany certainly does not, which
makes Mr Lidington's statement on 11 October difficult to understand.
5. What Germany has is a written constitution
(Basic Law) that deals with the federal division of powers, protection
of fundamental rights, jurisdiction of the Federal Constitutional
Court and so on. It is quite possible that the Minister for Europe
had in mind Article 23 of the Basic Law, which was re-written
in 1992 to take account of German reunification, the Maastricht
Treaty and the Constitutional Court's jurisprudence on the EEC.
[18]
Other EU states have amended their constitutions to provide for
European law (as, for instance, the Republic of Ireland first
did in 1972) - such provision may create an open door to receive
EU law but it may also limit the dimensions of the door-way.
None of these states have a 'sovereign' legislature, since the
powers of the legislature are derived from the national constitution
and are subject to it. The nature of the EU system, in particular
the direct effect of European law, justifies a state in making
express provision for EU law in its constitution. In such countries,
the reception (or recognition) of EU law has been given by what
is in those countries the ultimate national authority - the process
for amending the constitution (le pouvoir constituant).
Such recognition, as the German instance shows, may be compatible
with the retention by the national constitutional court of power
to decide whether for any reason a provision of EU law is affected
by national limits set on the recognition of EU law.
6 Dicey's Law of the Constitution made
famous the phrase "the
sovereignty of Parliament", but a more exact term for the
legal doctrine is "legislative
supremacy", whereby the power of the Queen-in-Parliament
to legislate is subject to no legal limitations, and the courts
have no power to review the validity of Acts of Parliament. This
doctrine is always considered to be subject to the limitation
that Parliament is unable to bind its successors (a matter to
which I return briefly below). An advantage of using the term
supremacy rather than sovereignty is that it enables the supremacy
of EU law to be balanced against the supremacy of national law.
[19]
7. What the legal doctrine of the legislative
supremacy of Parliament does not address is the source of that
supremacy - where does 'ultimate authority' lie in Britain? It
is generally said that ultimate authority cannot derive from an
Act of Parliament (since Parliament cannot pull itself up by its
own bootstraps). Is then the only other source of that authority
to be found in decisions of the courts - in
"the common law"? However, we again
need to ask: what is the source of the courts' power to decide?
If the "common
law" is the source, the rule of legislative supremacy is,
to say the least, a rather unusual rule of the common law. We
must further ask whether, if the rule of legislative supremacy
is merely a rule of the common law, (a) may the courts today re-visit
and modify the rule? and (b) may the rule be modified by an Act
of Parliament? "Yes"
was the answer given to question (b) by Sir Ivor Jennings; and
"no" was Sir William Wade's answer.[20]
Fortunately I need not here go deeply into these matters. A complete
answer to the question of ultimate authority may rather be found
in the history of law and government in the United Kingdom since
1689, taking account of matters such as the Bill of Rights 1689
(that gave a parliamentary basis to the monarchy and asserted
the powers of Parliament over the monarch) and the settled practice
of the courts in denying that they have power to limit the legislative
authority of Queen-in-Parliament. [21]
8. To come specifically to clause 18. This in
effect declares that the status in the law of the United Kingdom
of EU law, as identified in the European Communities Act 1972,
section 2(1), is dependent on there being an Act of Parliament
that makes provision for this. I see no good reason to dispute
what is almost a truism, but I am not persuaded that there is
a need for this even as a declaratory measure for the avoidance
of doubt. If this is enacted, we can be certain that if at a
future date the UK Parliament wished to revoke the 1972 Act to
enable Britain to leave the EU, an Act to do so would be upheld
by United Kingdom courts. However, is there any real doubt about
this at the present time? For instance, in his elaborate discussion
of overlapping sovereignties in Europe today, MacCormick accepted
that Parliament retained the power to reverse the decision in
1972 to enter Europe, [22]
as others have also done. [23]
The leading judgments in the Factortame affair do not exclude
the existence of that power.
9. Whether or not there is a need for clause
18, the drafting is a little awkward in the phrase 'only by virtue
of an Act of Parliament'. (Possibly the clause would read more
easily if it stated that 'directly applicable or directly effective
EU law
.. shall be recognised and available in law in the
United Kingdom only where there is statutory authority for this'
- in the great majority of cases that authority would be found
in the European Communities Act 1972.) But as is clearly stated
in para 109 of the Explanatory Notes, what clause 18 does not
do, and could not do, is to alter the nature of EU law, its primacy
within the EU system and its relationship with UK law. Thus,
for instance, it does not (and could not) change section 2(1)
of the 1972 Act into a provision equivalent to the delegation
of Parliament's legislative powers to Ministers. The 1972 Act,
against the background of European treaties and the case-law of
the Court of Justice, continues to be the entry-point to a legal
system that does not derive its character from the Westminster
Parliament or from decisions of UK courts. Nor does clause 18
provide an answer to questions about implied repeal of the kind
that were considered by Laws LJ in the Metric Martyrs case, a
matter to which I return below.
10. I now turn to some difficulties that in my
view arise from the Explanatory Notes, paragraphs 106-108. According
to para 106, clause 18 addresses concerns that the doctrine of
Parliamentary sovereignty "may
in the future be eroded by decisions of the courts". If
the fear is that at a future date Parliament might legislate to
repeal the 1972 Act and end the application of EU law within the
United Kingdom, only to find that the UK courts had nullified
such legislation and required Britain to remain in continued membership
of the EU, the fear is wholly unfounded. If the fear is that
there could be another Factortame affair in which a statutory
provision might be disapplied because it was incompatible with
EU law, clause 18 would not lead to a different result. The reality
is that so long as the United Kingdom continues in membership
of the EU, the Diceyan doctrine of legislative supremacy has been
eroded, and clause 18 does not address this. In a similar way,
the effect of the Human Rights Act has been an erosion of important
aspects of legislative supremacy in the Diceyan sense. But such
erosion as has taken place is not to be attributed to decisions
of the courts, but to the legislation enacted by Parliament.
There may of course be scenarios of an intermediate kind in which
there is an inconsistency between a future Act and rights under
EU law: in such situations, UK courts will have to make the best
decisions that they can, taking into account the effect of sections
2 and 3 of the European Communities Act 1972. Such decisions
would not in my view be affected by clause 18.
11. Another difficulty in the Explanatory Notes
comes from paras 107-108 dealing with the Thoburn case.
In his closely argued judgment in that case, Laws LJ dealt with
the opposing arguments of the two sides and rejected the extreme
positions advanced by each of them. The Explanatory Notes do
not present a balanced account of this complex judgment. The
judge's conclusion summarising the relationship between the competing
'supremacies' of EU and domestic law was given in four propositions:
(1) All the specific rights which EU law creates
are by the 1972 Act incorporated into our domestic law and rank
supreme: that is, anything in our substantive law inconsistent
with any of these rights and obligations is abrogated or must
be modified to avoid the inconsistency. This is true even where
the inconsistent municipal provision is contained in primary legislation.
(2) The 1972 Act is a constitutional statute: that
is, it cannot be impliedly repealed.
(3) The truth of (2) is derived, not from EU law,
but purely from the law of England: the common law recognises
a category of constitutional statutes.
(4) The fundamental legal basis of the UK's relationship
with the EU rests with the domestic, not the European, legal powers.
In the event, which no doubt would never happen in the real world,
that a European measure was seen to be repugnant to a fundamental
or constitutional right guaranteed by the law of England, a question
would arise whether the general words of the 1972 Act were sufficient
to incorporate the measure and give it overriding effect in domestic
law. But that is very far from this case.[24]
12. There is much force in the judge's ruling
that the statute book includes a number of
"constitutional statutes" that may
call for an appropriate response in the courts, in particular
that they are not subject to being implied repeal. This conclusion
is however difficult to reconcile with some of the orthodox propositions
asserted by Laws LJ in para [59] - in particular that relating
to implied repeal. Further, as I have explained elsewhere, I
do not agree with the assertion that the British Parliament
"being sovereign, it cannot abandon its
sovereignty"; and I consider that the proposition that Parliament
cannot bind its successors is an over-broad proposition.[25]
13. This paper is limited to consideration of
clause 18. Nonetheless, as the previous paragraph indicates,
discussion of legislative supremacy is likely to involve the proposition
that Parliament is unable to bind its successors. It is remarkable
therefore that the Explanatory Notes to Part 1 of the Bill do
not deal with the application of this proposition to the proposals
in clauses 2, 3 and 6 that British approval to certain changes
in EU law will require first to be approved by an Act of Parliament
and that the change should be approved by a referendum. These
clauses provide that the Act of Parliament to approve a specific
change must contain provision for the holding of a referendum.
It is one thing for Parliament to require that certain actions
may be taken by the Government only when approval has been given
for them by a further Act. But today's Parliament may not require
that further Act to include the requirement of a referendum.
A future Parliament may of course expressly repeal or amend the
requirement of a referendum clause, but (unless the present European
Union Bill is recognised by the courts as being a constitutional
statute, and thus immune from implied repeal) what is the position
if no referendum clause is included in the later Act - either
because no such clause is proposed by the Government or if a referendum
clause is proposed but is then defeated? The Explanatory Notes
envisage that certain ministerial decisions under Part 1 of the
Bill will be subject to judicial review: is it also envisaged
that a future Act of Parliament that did not include a referendum
clause would be subject to judicial review? Laws LJ in the Thoburn
case declared that Parliament
"cannot stipulate as to the manner and
form of any subsequent legislation". Is not Part 1 of the
Bill is attempting to do exactly that?
23 November 2010
17 Of the Inner Temple, barrister;
research fellow, Institute of European and Comparative Law, University
of Oxford; emeritus Professor of Constitutional Law, University
of Edinburgh Back
18
See JEK Murkens, ' "We Want Our Identity Back" - the
Revival of National Sovereignty in the German Federal Constitutional
Court's Decision on the Lisbon Treaty' [2010] Public Law 530-550. Back
19
As Laws LJ does in his judgment in Thoburn v Sunderland City
Council [2003] QB 151. Back
20
For a recent discussion of this dispute, see M Gordon, "The
Conceptual Foundations of Parliamentary Sovereignty" [2009]
Public Law 519-543. Back
21
I argue this more fully in my chapter, "The Sovereignty of
Parliament - form or substance?" in J Jowell and D Oliver
(eds) The Changing Constitution (6th edn, 2007;
7th edn, in press). See also N MacCormick's theoretical
development of a similar position in Questioning Sovereignty
(1999) e g at pp 85-6, 103; and J Goldsworthy, The Sovereignty
of Parliament : History and Philosophy (1999). Back
22
MacCormick, op cit, pages 88-89. Back
23
See A Tomkins, Public Law (2003), page 117. Back
24
[2003] QB 151 at para [69]. Back
25
See the chapter from The Changing Constitution already
cited; and AW Bradley and KD Ewing, Constitutional and Administrative
Law (15th edn, 2010), chapter 4. Back
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