Written evidence from the Foreign and
Commmonwealth Office on Clause 18 of the EU Bill
What is the basis for concerns that Parliamentary
sovereignty "may
in the future be eroded by decisions of the courts" (paragraph
106 of the explanatory notes), given the differences of opinion
on this issue?
In its chapter on Government policy towards the EU,
the Coalition Programme for Government set out that the Government
would examine the case for a United Kingdom Sovereignty Bill affirming
that ultimate authority remains with Parliament.
The common law principle that Parliament is sovereign
and that directly applicable and directly effective EU law takes
effect in the UK by virtue of Acts of Parliament (principally
the European Communities Act 1972) has been well recognised by
our Courts and upheld in their judgments most notably in the Court
of Appeal judgment in the case of Thoburn v. Sunderland City Council
[2002] 4 All ER 156 (the so called
"Metric Martyrs" case).
As the Minister for Europe told the House of Commons
on 15 June, the Government assessed whether the common law provides
sufficient ongoing and unassailable protection for the principle
of Parliamentary sovereignty in relation to EU law.
Some commentators take the view that the doctrine
of Parliamentary sovereignty may not be unassailably absolute
and may be qualified. Their argument is that the doctrine is part
of the common law, judge-made and therefore susceptible to being
altered by the courts in the future. They suggest that the EU
constitutes a new legal order which has become an integral part
of the UK's legal system and which the UK courts are bound to
apply. It follows that they argue that the primacy of EU law might
no longer operate by virtue of the 1972 Act but could become the
basic norm underlying the UK legal system (or so called
"Grundnorm") to be applied by the
UK courts. That is, EU law could apply directly as a part of UK
law as it would have a higher autonomous status deriving from
the EU Treaties or international law and principles. This, the
argument goes, would result in the UK courts holding that legislation
which made provision purposefully contrary to EU law and expressly
overrode the 1972 Act would not be applicable in the UK and therefore
the doctrine of Parliamentary sovereignty would be modified.
In taking this view they point not only to the arguments
run in the Metric Martyrs Case but also to obiter remarks made
by Lord Hope and Lord Steyn in R (Jackson) v. Attorney General
[2005] UKHL 56 on the supremacy of Parliament. It should be noted
that this case concerned whether the Parliament Act 1949 was lawfully
made given that it was made under the procedure set out under
the Parliament Act 1911, without the consent of the House of Lords
and the implications that might arise if it was not for other
legislation (the Hunting Act 2004) made pursuant to it. No issues
relating to the relationship between UK and EU law arose in this
case. Furthermore, so far these obiter statements have not received
wider approval in the courts and are thus not regarded as authoritative.
However, they do raise the question whether there are some judges
whose thinking might be moving away from the absolute doctrine
of Parliamentary sovereignty.
For completeness Lord Steyn said (paragraph 102):
"This is
where we may have to come back to the point about the supremacy
of Parliament. We do not in the United Kingdom have an uncontrolled
constitution as the Attorney General implausibly asserts. In the
European context the second Factortame decision made that clear:
[1991] 1 AC 603. The settlement contained in the Scotland Act
1998 also point to a divided sovereignty. Moreover, the European
Convention on Human Rights as incorporated into our law by the
Human Rights Act, 1998, created a new legal order. One must not
assimilate the ECHR with multilateral treaties of the traditional
type. Instead it is a legal order in which the United Kingdom
assumes obligations to protect fundamental rights, not in relation
to other states, but towards all individuals within its jurisdiction.
The classic account given by Dicey of the doctrine of the supremacy
of Parliament, pure and absolute as it was, can now be seen to
be out of place in the modern United Kingdom. Nevertheless, the
supremacy of Parliament is still the general principle of our
constitution. It is a construct of the common law. The judges
created this principle. If that is so, it is not unthinkable that
circumstances could arise where the courts may have to qualify
a principle established on a different hypothesis of constitutionalism."
Lord Hope added (paragraphs 104 and 105)
"104. I
start where my learned friend Lord Steyn has just ended. Our constitution
is dominated by the sovereignty of Parliament. But Parliamentary
sovereignty is no longer, if it ever was, absolute. It is not
uncontrolled in the sense referred to by Lord Birkenhead LC in
McCawley v The King [1920] AC 691, 720. It is no longer right
to say that its freedom to legislate admits of no qualification
whatever. Step by step, gradually but surely, the English principle
of the absolute legislative sovereignty of Parliament which Dicey
derived from Coke and Blackstone is being qualified.
105. For the most part these qualifications are
themselves the product of measures enacted by Parliament. Part
I of the European Communities Act 1972 is perhaps the prime example".
In his 2009 pamphlet
"Safeguarding Sovereignty: A Bill
for UK Constitutional Rights in the UK"
Martin Howe QC, concludes in his final chapter entitled
"Parliamentary Sovereignty and the EU:
The Way Forward":
It is on fundamental questions like the sovereignty
of Parliament that a drift of judicial opinion can occur over
time. Judge-made doctrines accepted today may in the future reach
the stage of no longer being accepted, not because they have been
expressly altered or abrogated by a specific piece of legislation
or a conscious change, but because of a general change in the
judicial or political climate. The continued accretion of powers
to EU institutions and the passage of time together may result
in such a change of climate, coupled possibly with greater judicial
assertiveness and reduced deference to Parliament, now that the
highest judges have moved from the House of Lords to the Supreme
Court. Could our judges one day decide that they owe their allegiance
to some higher system of law deriving from the EU treaties, or
from international treaties and principles, instead of to Parliament.
Our own analysis has led us to the conclusion that
there is no persuasive legal authority to support the contention
that the doctrine of Parliamentary sovereignty is no longer absolute.
Our assessment is that, to date, case law since 1972 has consistently
upheld the principle of Parliamentary sovereignty. There is no
uncertainty here.
However, by providing by statute that directly applicable
and directly effective European Union law takes effect in the
UK by virtue of an Act of Parliament, Parliament will be affirming
the existing position under the common law, and making a clear
and unambiguous statement of its intention. As paragraph 106 of
the Explanatory Notes says, 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
or international law and principles which has become an integral
part of the UK's legal system independent of statute.' It will
deal with the main concern expressed by the commentators which
is that there may be future judicial drift on the question of
how the primacy of EU law is achieved domestically in UK law.
How far does Clause 18 address those concerns? In
particular:
What (if any) is the likely effect of putting
the principle of parliamentary sovereignty with respect to directly
applicable or directly effective EU law on a statutory footing
on the constitution of the UK? What additional protection does
a statutory provision, which can be repealed, confer on the principle
and practice of parliamentary sovereignty beyond the common law?
Setting out categorically that directly applicable
and directly effective European Union law takes effect in the
UK by virtue of an Act of Parliament puts the matter beyond speculation
and will assist the courts by providing clarity about Parliament's
intentions.
Repeal of this statutory provision would not affect
the common law. Parliament would remain sovereign. It would just
mean that this would no longer be written into statute, and the
courts would lose this additional clarity about Parliament's intentions.
An opportunity to guard against the future problem of judicial
drift would have been removed.
The then Lord Chancellor, Lord Hailsham, said during
the debates on the European Communities Bill (8 August 1972):
"It would
be impossible to devise an Act of Parliament . . . which destroyed
the sovereignty of Parliament, because theoretically the Act which
destroyed it could always subsequently be repealed or amended
by a subsequent Parliament. That doctrine remains absolutely
unaffected by anything in the Act".
What (if any) is the likely effect of putting
the principle of parliamentary sovereignty on a statutory footing
on the interpretation of the European Communities Act 1972, particularly
sections 2(4) and 3(1)? Does this Clause apply to future as well
as present and past Acts of Parliament?
Clause 18 will not affect the interpretation of the
European Communities Act 1972 since the clause is declaratory.
The clause will not alter the existing relationship between UK
and EU law in particular the clause does not cast doubt on the
primacy of EU law which had already been well established as a
key principle of EU law by the time that the UK acceded to the
European Communities. In agreeing to membership of the EEC the
UK Parliament through the European Communities Act 1972 accepted
this position and this clause does not change the position.
It will apply to future Acts of Parliament since
Acts of Parliament apply unless and until they are repealed.
What (if any) is the likely effect of putting
the principle of parliamentary sovereignty with respect to directly
applicable or directly effective EU law on a statutory footing
on UK judges reviewing the acts of public authorities and/or national
legislation for consistency with EU law? Paragraph 106 of the
explanatory notes says that this Clause
"will provide clear authority which can
be relied upon to counter arguments that EU law constitutes a
new higher autonomous legal order derived from EU Treaties or
international law and principles which has become an integral
part of the UK's legal system independent of statute". Relied
upon by whom? And in what circumstances?
Clause 18 makes clear that directly applicable and
directly effective EU law takes effect in the UK domestic legal
order by virtue of the will of Parliament and through the acts
its has adopted, principally the European Communities Act 1972.
As stated the clause is declaratory in nature and purpose and
does not change the requirement on UK Courts to have regard to
the EU Treaties. However, what it does do is make clear that directly
applicable and directly effective EU law do not have an autonomous
status within the UK but take their authority from the fact that
Parliament has through its Acts decided to import them into
the domestic legal order.
In the event of any litigation arising where a party
sought to claim that directly applicable or directly effective
EU law had an autonomous legal existence in the UK, the other
party would be able to counter this argument by referring to this
clause. Similarly, judges could take this into account in addressing
the arguments raised in their judgments.
The 'Metric Martyrs' Case is an illustration of a
case where a party to the proceedings sought albeit unsuccessfully
to raise an argument that EU law existed independently of the
will of Parliament.
Is Clause 18 consistent with Declaration 17 to
the Lisbon Treaty on the primacy of EU law, and the case of law
of the Court of Justice that supports it?
The principle of the primacy of EU law (then EC law)
was established before the United Kingdom joined the European
Community in 1973.
Parliament gave effect to the principle of the primacy
of Community law through the 1972 Act, in particular sections
2(1) and 2(4).
During the debates in Parliament in 1972 on the European
Communities Bill the then Lord Chancellor, Lord Hailsham explained
the position as follows:
"There
is of course a potential conflict in every member country between
the municipal and constitutional law of that country and the new
source of law provided by the Treaty and regulations… If
it arises here… it will arise not because of conflict with
our written Constitution, because we have not a written Constitution,
but in relation to the doctrine which we do possess and which
to some extent takes the place of a written Constitution - the
doctrine of the sovereignty of Parliament and its corollary (I
believe judge-made) the doctrine of the priority of later Acts
over previous Acts: that rule of construction whereby when two
Acts conflict the latter is construed as amending or repealing
the earlier one. It is to meet this difficulty that clause 2(4)
has been inserted as an express provision in the Bill in so far
as it provides that obligations arising under clause 2(1) (Community
obligations) have precedence over subsequent enactments. This
therefore provides a new rule of construction of Statutes to substitute
in the appropriate case, but only in the appropriate case, for
the judge-made rule to which I have referred. It is not inconsistent
with the sovereignty of Parliament. It is, as… Lord Gardiner
pointed out in 1967, an application of the doctrine of the sovereignty
of Parliament."
Declaration 17 to the Lisbon Treaty does not change
the position on primacy; it merely reaffirms the existing doctrine
of primacy and does not affect the incorporation of directly applicable
and directly effective EU law into UK law through section 2(1)
of the European Communities Act.
As the Explanatory Notes to Clause 18 make clear,
it does not alter the existing relationship between EU law and
UK domestic law, in particular, the principle of the primacy of
EU law. However, it does reaffirm the position taken by Lord Hailsham,
namely that it is only through the application of the doctrine
of the sovereignty of Parliament - ie through an Act of Parliament
- that the principle of primacy takes effect in the UK.
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