The EU Bill and Parliamentary sovereignty - European Scrutiny Committee Contents

Written evidence from Professor T R S Allan, Professor of Public Law and Jurisprudence, Pembroke College, University of Cambridge


Clause 18 -- Status of EU law dependent on continuing statutory basis

1. There is much debate over the nature and foundations of the doctrine of parliamentary sovereignty. Broadly speaking, two general approaches can be distinguished. On one view, parliamentary sovereignty is an expression of 'political fact': the courts acknowledge the supremacy of Parliament as presently constituted, bowing simply to the outcome of historical events as they have unfolded. This was the view adopted by Professor Sir William Wade (see 'The Legal Basis of Sovereignty' [1955] CLJ 172) and now endorsed by Professor Adam Tomkins (para 29 of Professor Tomkins's written evidence).

2. It is easy to see, in the present context, where that view might lead. When Parliament passed the European Communities Act (ECA) 1972, in exercise of its sovereignty, the United Kingdom joined a new legal order whose law took primacy over national law. According to the established jurisprudence of the European Court of Justice, at the time of accession, EU law enjoys a special authority derived from the EU Treaties; rather than being assimilated to domestic law, EU law has an independent and uniform existence throughout the Member States. As a practical consequence of what was done in 1972, EU law has been entrenched: its operation in the UK can be brought to an end only by secession from the EU. (Compare counsel's argument in the Thoburn case [2003] QB 151, para 53 of the judgment.)

3. At the time of accession Professor J.D.B. Mitchell had put forward a similar view. The ECA 1972 merely acknowledged the legal consequences of the fact of accession to the Treaty: there had been a 'revolution' comparable to that entailed by enactment of the Acts of Union 1707, or Statute of Westminster 1931. Professor Wade's view of the effect of the Factortame cases was very similar. Parliament had chosen to embrace membership of the EU, with the obligations it entails, and the court had bowed to the consequences: there had been a revolution which only the wholesale repeal of the ECA could reverse: 'While Britain remains in the Community we are in a regime in which Parliament has bound its successors successfully, and which is nothing if not revolutionary.' (Sir William Wade, 'Sovereignty -- Revolution or Evolution?' (1996) 112 LQR 568, p. 571.) Like counsel in Thoburn, Professor Wade cited Lord Bridge's remarks in Factortame (No 2) [1991] 1 AC 603, 658: 'Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the ECA 1972 was entirely voluntary.' The House of Lords was acknowledging the new political facts.

4. An alternative approach rejects the idea that questions of law can be simply reduced to matters of fact. Political and historical events have to be interpreted in the light of general principles, giving weight to our conceptions of democracy and fundamental rights. All questions about the meaning and effects of legislation are partly evaluative questions about legitimacy: how should statutory instructions be understood in the light of the nature of the UK legal order as a liberal democracy based on the Rule of Law?

5. In the present context, it is necessary to consider not merely what Parliament did in 1972 but what it was entitled to do. There is much force, I believe, in Lord Justice Laws's view, expressed in Thoburn, that Parliament's authority did not extend to the abandonment or surrender of its own continuing legislative supremacy. The true basis for the reception of EU law lies in British constitutional law: 'The conditions of Parliament's legislative supremacy in the UK necessarily remain in the UK's hands.' (Thoburn judgment, para 59.)

6. The doctrine of 'parliamentary sovereignty' is itself conducive to some confusion, in my view; like Professor Bradley (para 6 of his written evidence) I prefer the term 'legislative supremacy', which signifies that Parliament is the supreme law-making body within the UK legal order. Sovereignty must, I believe, reside in the legal order itself, from which Parliament's legislative supremacy is derived. The nature and scope of legislative supremacy are matters of common law in the sense that they are questions to be resolved, necessarily, by the courts in order to determine contested and doubtful cases. Such cases depend for correct resolution on consideration of all the pertinent reasons. The present context, concerning the implications of British membership of the EU, vividly illustrates the dependence of Parliament's continuing legislative authority on judicial interpretation of the nature of the UK legal order, viewed as a whole.

7. The Thoburn judgment provides a good illustration of the operation of the common law constitution. In seeking to accommodate the European doctrine of the primacy of EU law with the supremacy of Parliament, as a matter of domestic constitutional law, Lord Justice Laws made -- or rather proposed -- a very modest change to the general rule permitting implied repeal: it would be necessary for Parliament expressly to amend or repeal the ECA before it could be overridden by a later statute. The (common law) presumption that Parliament has no intention to create any conflict with directly applicable EU law is simply a reflection of the practical consequences and requirements of UK membership of the EU. By recognising only the most modest adjustment of the previous understanding, sufficient to accommodate the Factortame decisions, the continuing sovereignty and independence of the UK legal order remains untouched.

8. Lord Justice Laws's approach to legislative supremacy illustrates the importance of the question of legitimacy. He notes that circumstances could be imagined when the ECA would be an inadequate basis for the effective operation of EU law, even without any further parliamentary intervention: a European measure perceived to be 'repugnant to a fundamental or constitutional right guaranteed by the law of England' would be repudiated. That would be consonant with the position of other Member States such as Germany, where the Federal Constitutional Court insists on the sanctity of rights guaranteed by the Basic Law. The correct approach, in my view, not only protects the future exercise of legislative supremacy by Parliament, but also provides an ultimate guarantee against European measures that threatened basic human rights or other fundamental principles of the UK legal order.

9. The Explanatory Memorandum, para 107, shows that clause 18 is intended to resist the theory whereby 'the law of the EU includes the entrenchment of its own supremacy as an autonomous legal order, and the prohibition of its abrogation by the Member States'. The clause is apparently intended to confirm the view of Lord Justice Laws, who insisted that since Parliament could not abandon its own continuing sovereignty, it was not possible for the ECJ by its own jurisprudence to alter the constitutional basis on which EU was received in the UK.

10. It is hard to see how clause 18, if enacted, could affect the existing constitutional position. If it is true that the constitutional basis for the reception of EU law is a matter of British constitutional law, it must be true in virtue of a correct understanding of the common law. According to Lord Justice Laws's account, Parliament may not abandon or surrender its continuing legislative supremacy, which is ultimately defined by judicial interpretation of the UK legal and constitutional order. Clause 18 therefore makes no difference: since it is a question of the nature and boundaries of Parliament's powers, a statutory declaration adds nothing to the existing common law position.

11. If, in the alternative, Thoburn were wrongly decided, and the correct position were that the autonomous EU legal order is now also the constitutional basis for the authority of EU law in the UK, clause 18 would equally be unable to alter the position. A court which accepted that the primacy of EU law was now entrenched within the UK would be forced to conclude that clause 18, if enacted, was erroneous.

12. The Explanatory Memorandum, para 106, says that by 'placing on a statutory footing the common law principle that EU law takes effect in the UK though the will of Parliament and by virtue of an Act of Parliament, this will provide clear authority which can be relied upon to counter arguments that EU law constitutes a new higher autonomous legal order derived from the EU Treaties . . . which has become an integral part of the UK's legal system independent of statute.' It is not, however, possible to place such a common law principle 'on a statutory footing' because the principle concerns the nature of continuing legislative authority. If, for example, a new statute were to purport to override, or derogate from, directly applicable EU law, there would be a conflict with the legal consequences of the ECA, which only the courts could resolve. Doubts about the limits or consequences of conflicting statutory instructions cannot be resolved by appeal to further such instructions without begging the question at issue.

24 November 2010

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