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