The EU Bill and Parliamentary sovereignty - European Scrutiny Committee Contents

Written evidence from Martin Howe QC


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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