Written evidence from Martin Howe QC
INQUIRY INTO
THE EUROPEAN
UNION BILL
1. This evidence relates to the first phase of
the Committee's inquiry, on Part 3 of the Bill and the status
of EU law.
2. In late 2009, I published a paper ("Safeguarding
Sovereignty: A Bill for UK Constitutional Rights in the EU",
Politeia) which advocated the statutory entrenchment of the supremacy
of Parliament against the potential erosion which might result
from the application by our courts of the doctrine of the primacy
of Community[27]
law. That paper (which I am making available to the Committee
with this memorandum[28])
examines at greater length than is possible in this evidence a
number of relevant legal decisions of the ECJ, of the courts of
this country, and of other Member States.
3. The central argument in that paper is that
the UK's fundamental constitutional doctrine, the supremacy of
Parliament, is at least potentially vulnerable to erosion as a
result of changes in judicial climate, because it is a doctrine
expressed in the judgments of courts and the words of writers
on constitutional law rather than in a formal written constitutional
document. In this respect the United Kingdom's constitutional
order differs from the constitutional orders of the other Member
States surveyed where, with the possible exception of Belgium,
written constitutions define the ultimate limits of EU powers
within the domestic legal order.
4. In these circumstances I am naturally pleased
that the Government has brought forward a proposal in Clause 18
of the Bill which is designed to address this issue. Such a clause
in neither unnecessary (since there is a real danger of such erosion),
nor futile (which would be the case if ultimate sovereignty had
already passed from Parliament by virtue of the European Communities
Act 1972). I will therefore concentrate, in the light of the
issues raised in the Committee's notice of inquiry, on whether
the drafting of this clause is optimal to achieve its intended
objective.
Relationship with the European Communities Act
1972
5. The heart of the potential ambiguity which
the Clause is intended to address arises from the words used in
subsection 2(4) of the 1972 Act:
"... and any
enactment passed or to be passed, other than one contained in
this Part of this Act, shall be construed and have effect subject
to the foregoing provisions of this section;"
6. These words on their face purport not merely
to require that other Acts are to be construed so as to
be consistent with directly effective EU law, but also purport
to limit the effect of Acts (both past and future). This
alters, at least to some degree, the operation of the doctrine
of sovereignty of Parliament. The drafting of the 1972 Act does
not, either at this point or elsewhere, explicitly spell out the
scope of this limitation on the effect of future Acts of
Parliament. The courts have (at least so far) said that this
provision limits the effect of later Acts of Parliament which
are in conflict with EU law, even to the extent of rendering them
partly or wholly inoperative, unless Parliament expresses a
contrary intention.
7. However, this conclusion itself rests on interpretation
of the 1972 Act against the background of the doctrine of sovereignty
of Parliament. The Explanatory Memorandum accompanying the Bill
helpfully quotes paragraph 59 of the important judgment of Lord
Justice Laws in the Thoburn ("Metric
Martyrs") case. In this paragraph, he appears to express
the view that Parliament cannot legislate to abandon its
sovereignty: "The
British Parliament has not the authority to authorise any such
thing. Being sovereign, it cannot abandon its sovereignty."
8. In my opinion, this aspect of the judgment
can be misunderstood. It is clear beyond any possibility of doubt
that Parliament does have the power to abandon its sovereignty,
if it were ever deliberately to take that step.[29]
The Parliament of the United Kingdom came into existence as a
result of two successive Acts of Union, between England and Scotland
and between Great Britain and Ireland. By the Act of Union with
Scotland, the Parliament of England dissolved itself and transferred
its sovereignty to the new Parliament of Great Britain. Accordingly,
it cannot be denied that the present day Parliament of the United
Kingdom has the legal power, were it to choose to do so, to abandon
its sovereignty: either to the organs of a greater political union
to which the United Kingdom were to subscribe, or to transfer
its sovereignty to a written Constitution which created a legislature
with constitutionally limited powers.
9. It follows that the observations of Lord Justice
Laws about Parliament's inability to abandon its sovereignty are
only valid so long as the fundamental doctrine of sovereignty
of Parliament is in place, and must be read with this implicit
limitation in mind. The argument is therefore circular. The argument
would not apply if a court interpreting the 1972 Act were to take
the view that Parliament's intention in passing that Act had indeed
been to abandon or permanently transfer its sovereignty.
10. Accordingly the heart of the problem is remedying
any possible ambiguity in the 1972 Act itself. For this reason
it would be preferable if the wording of Clause 18 of the present
Bill were to be inserted by amendment to stand as a new section
within Part I of the 1972 Act, rather than standing as a section
a separate Act. This would mean that it would then be encompassed
by the words "other
than one contained in this Part of this Act" in section 2(4)
of the 1972 Act and there would be no doubt at all that it is
not subject to section 2(4). If the section resulting from Clause
18 stands as part of a separate Act, there is still room for a
verbal argument that its effect is limited by the words in section
2(4).
11. In my view Clause 18 as presently drafted
is valuable and is almost certainly sufficient to achieve its
intended purpose of preventing judicial drift towards the erosion
of the doctrine of Parliamentary sovereignty. This is because
it can be said that it is evident from the nature of the clause
itself and from its express reference to section 2(1) of the 1972
Act that it is intended by Parliament to limit, or at least to
qualify by way of clarification, the effects of section 2(4) and
other provisions of Part I of the 1972 Act. However, since the
purpose of this clause is to prevent all doubt, it would ideally
be preferable if the opportunity were taken to squash conclusively
any lingering arguments which might arise from the fact that it
is not within Part I of the 1972 Act.
Consistency with Declaration 17 to the Lisbon
Treaty
12. This requires consideration of the case law
developed by the ECJ on the doctrine primacy of Community law
(now EU law). This is dealt with more fully at pages 7 to 9 of
my "Safeguarding
Sovereignty" paper. Briefly, I consider that this doctrine
as developed by the ECJ can be separated into two distinct aspects.
13. First, it is a well established doctrine
of public international law that a State cannot pray in aid internal
constitutional or legal provisions as an excuse for non-compliance
with obligations imposed by international law. It is inevitable
that a court such as the ECJ operating on the international plane
should apply this doctrine. I will call this
"external primacy".
14. However, the language used in some of the
ECJ's judgments suggests that the courts of the Member States
are under a legal duty arising directly from Community law to
apply it in preference to all national laws including provisions
of the State's own constitution. I will call this the doctrine
of "internal
primacy". This was most clearly stated in the following
quotation from Internationale Handelsgesellschaft:[30]
"The law stemming
from the Treaty, an independent source of law, cannot because
of its very nature be overridden by rules of national law, however
framed ... Therefore the validity of a Community measure or its
effect within a Member State remains unimpaired even if it is
alleged that it runs counter to either fundamental rights as formulated
by the Constitution of that State or the principles of a national
constitutional structure".
15. Despite this and other utterances of the
ECJ on this subject, it is clear in my view that a doctrine of
internal primacy is not accepted by a number of major Member
States. Most explicitly, the Federal German Constitutional Court
has made it clear in the Manfred Brunner case and in the
more recent Lisbon Treaty case[31]
that the legal effectiveness of Community/EU law within Germany
stems from the German Constitution and is therefore subject to
the limitations imposed by the German constitutional order. Accordingly
Declaration 17 to the Lisbon Treaty must be read subject to the
limitation that most Member States do not recognise full internal
primacy within their own constitutional orders.
November 2010
27 Now properly styled "EU law" after the
coming into force of the Lisbon Treaty. Back
28
Not printed. Back
29 This
indeed was the view of A.V. Dicey. Back
30 [1970]
ECR 1125 at 1134. Back
31 Please
see passages referred to at pages 10-12 of the "Safeguarding
Sovereignty" paper. Back
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