The EU Bill and Parliamentary sovereignty - European Scrutiny Committee Contents

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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