Appendix: Government response
Introduction
1. In the section on Europe in the Coalition
Programme for Government, the Government said it would 'examine
the case for a United Kingdom Sovereignty Bill to make it clear
that ultimate authority remains with Parliament'. The Minister
for Europe told Parliament on 15 June 2010 that this would explore
how to 'ensure the fundamental principle of Parliamentary sovereignty
is upheld', and 'assess whether the common law provided sufficient
ongoing and unassailable protection for that principle.'
2. On 11 October 2010, the Minister for Europe
made a statement in the House of Commons announcing that the Government
had completed its examination of the case for a statutory provision
on Parliamentary sovereignty, and had decided to include such
a provision in the European Union Bill.
3. The Government introduced the European Union
Bill into the House of Commons on 11 November 2010. The House
of Commons European Scrutiny Committee immediately announced that
it would conduct an inquiry into the Bill. The Government submitted
evidence on 29 November and the Minister for Europe gave oral
evidence on 6 December. The Scrutiny Committee's report was published
on 7 December.
4. This Government response deals with Volume
1 of the Committee's Report on the EU Bill and Parliamentary sovereignty
(Tenth Report of Session 2010 -2011). It has been produced in
a shorter time period than the usual two months allowed for replies
to such reports so that the response issues before the start of
the Commons Committee Stage of the European Union Bill which begins
on 11 January. The report takes the form of responses to the
evaluation and conclusions in Chapter 6.
Response
Issue 1: Is the doctrine of the legislative supremacy
of Parliament under threat from EU law?
5. The report says:
(para 71) 'The evidence we received
suggest that the legislative supremacy of Parliament is not currently
under threat from EU law.'
(para 73) 'In the light of this evaluation,
we have no reason to doubt that Thoburn reflected the well understood
and orthodox position, which left the constitutional principle
of dualism intact and is unlikely to be overturned.'
6. The Government has never claimed that Parliamentary
sovereignty is currently under threat in relation to EU matters.
We would agree that, to date, the UK Courts, in particular in
the Thoburn Case, have rebutted arguments that EU law has an autonomous
entrenched status in UK law and have recognised that EU law takes
effect in the UK through Acts of Parliament.
7. The concern is that the
UK Courts may in future be attracted to that argument, that EU
law has an autonomous, entrenched status in UK law. In other words,
that EU law could become a basic norm - or so called "Grundnorm"
- underlying the UK legal system, to be applied by the UK Courts
and against which UK legislation falls to be measured.
8. There are three main sources for this concern.
The first is the argument run in the Thoburn case, which could
be made again. The second source is the obiter remarks the Government
quoted in its written evidence. The third source is those commentators,
who take the view that the doctrine of Parliamentary sovereignty
may not be unassailably absolute and may be qualified. We quoted
Martin Howe QC in the written evidence. Two other examples are
JDB Mitchell in a lecture entitled 'What happened to the Constitution
on 1st January 1973?' (1980) and Professor Vernon Bogdanor
in 'The New British Constitution', published in 2009.
9. Although none of these sources has in any
way undermined the operation of Parliamentary sovereignty in relation
to EU matters to date, we do think that there is a need to put
the matter beyond speculation for the future. That is why we have
said (para 106 Explanatory Notes) that we want to 'address concerns
that the doctrine of Parliamentary sovereignty may in the future
be eroded by decisions of the courts.'
10. As the Minister for Europe,
David Lidington, said at the Bill's Second Reading, Clause 18
creates a 'point of reference to which any future court that considers
an argument about the source of authority for European law in
this country must have regard.'
11. Clause 18 reflects the
dualist nature of the UK constitutional system under which international
obligations including those assumed by the UK through its membership
of the European Union are not self executing within the UK legal
system. Clause 18 confirms and affirms that because the UK is
dualist, EU law is enforceable in the UK only because the UK's
Parliament has legislated to make it so.
Issue 2 Can an Act of Parliament derogate
from EU law by excluding the application of the ECA?
12. The report says:
para 76 'We think it right that, should an Act
of Parliament instruct the courts to disapply an aspect of EU
law, the courts should do so: this is not only consistent with
the case law of the courts, but also with the doctrine
of the legislative supremacy of Parliament; and also with the
rule of law.
para 77 'Professor Allan, by contrast, gives a
role and power to the courts that, when seriously entertained,
make it difficult to make any safe predictions about the future
effect of EU law on the legislative supremacy of Parliament'
para 78 'We think this view leads to a state of
uncertainty and gives primacy to the rule of EU law over the national
constitutional rule of law. And so we cannot see why it is "unrealistic"
for an Act of Parliament to ask judges to disapply an aspect of
EU law if it is the will of a democratically-elected Parliament,
even if it were to lead to infringement proceedings in the Court
of Justice. We also think there are degrees of non-compliance
with EU law, and that derogation from a Directive does not have
to lead to repealing the ECA and withdrawing from the EU. Professor
Hartley gave a good example of this: France's recent deportation
of Roma immigrants was almost certainly in violation of EU law
but, at the time of writing, had not led to infraction proceedings'
para 79 'we think that… there is considerable
risk in the legislative supremacy of Parliament being seen as
a construct of the common law if this means the principle will
vary according to the judicial climate of the time.'
13. The Government does not think
there is any uncertainty about what the UK Parliament could do.
We agree that if the UK Parliament were to repeal or disapply
the 1972 Act - i.e. to add a 'notwithstanding' clause into a piece
of UK legislation to make clear the UK is explicitly legislating
counter to EU law, the UK courts would respect that view.
14. We agree with Lord Denning on
this. 'If the time should come when our Parliament deliberately
passes an Act with the intention of repudiating the Treaty or
any provision in it, or intentionally of acting inconsistently
with it and says so in express terms… it would be the duty
of our courts to follow the statute of our Parliament…Unless
there is such an intentional and express repudiation of the Treaty,
it is our duty to give priority to the Treaty.'
15. However, we disagree with the
conclusion which the Committee draws about derogating from a Directive
not having significant consequences.
16. First, should Parliament do something
which would make the UK run counter to its international obligations?
As a country which respects the rule of law, this seems to us
to be contentious. It is certainly not something which we would
support should any other Member State seek to do it.
17. Second, there would be serious
consequences flowing from such a decision. The Treaties which
the UK Parliament has freely agreed bind the UK include provisions
which allow the European Commission to institute proceedings against
a Member State for breach of its obligations under the Treaties.
This can lead to an adverse judgment from the Court and the imposition
of heavy fines (which can take the form, of both a lump sum and
per diem charge) for non compliance with our Treaty obligations.
18. We also disagree with the suggestion that
there is something unconstitutional about giving primacy to EU
law, or that the principle of primacy or supremacy of EU law somehow
undermines the sovereignty of the UK Parliament. The Government
is absolutely clear that because the UK is dualist, EU law - including
the principle of primacy - is enforceable under the law of the
United Kingdom only because the United Kingdom Parliament so provides.
19. Parliament is sovereign. EU law only enters
UK law through the will of Parliament, therefore the status of
EU law within the UK legal system - including the principle of
primacy - is subject to the principle of UK Parliamentary sovereignty.
20. That is why the EU Bill focuses on restating
the principle of duality. By so doing, it does not affect the
primacy of EU law but it underlines that the principle of the
primacy of EU law only takes effect in UK law by virtue of a UK
Act of Parliament.
21. On the question of whether there
is a risk in the legislative supremacy of Parliament being seen
as a construct of the common law, this is quite rightly not something
which Clause 18 seeks to address as it goes beyond the scope of
an EU Bill. The purpose of Clause 18 is to make clear Parliament's
view of how EU law enters into UK law. It does not thereby have
any adverse effect on the principle of Parliamentary sovereignty,
which the Government remains committed to asserting and defending.
Issue 3 Clause 18
22. The report says:
(para 81) 'Clause 18 is a reaffirmation of the
role of a sovereign Parliament in a dualist state, nothing more,
nothing less.'
(para 82) 'Clause 18 does not address the competing
primacies of EU and national law. The evidence suggests that clause
18 is not needed.'
(para 85) 'If Parliament wills it may legislate
to override the European Communities Act 1972 or the EU Treaties
by repealing them, amending them or any provisions in them, or
by clearly and expressly legislating inconsistently with them
in respect of EU legislation or generally. It seems to us from
the evidence we received that, if the legislative supremacy of
Parliament is under threat, it is from judicial opinions in other
areas of law.
Because of trends in judicial interpretation flowing
from the assertion of the common law basis of Parliamentary sovereignty,
we attach weight to the warnings expressed by Professor Tomkins
if the Government maintains clause 18 in the EU Bill. Expressing
a principle in the context only of EU law invites questions about
why Parliament chose not for it to apply more generally. Professor
Tomkins expressed the view that the Bill, overall "goes out
of its way to invite litigation".
(para 86) The Explanatory Notes are misleading
when they state at paragraph 106 that the clause has been included
"to address concerns that the doctrine of Parliamentary sovereignty
may be eroded by the courts". Clause 18 is not a sovereignty
clause in the manner claimed by the Government, and the whole
premise on which it has been included in the Bill is, in our view,
exaggerated. We are gravely concerned that for political reasons
it has been portrayed by the Government as a sovereignty clause
in correspondence and also in the Explanatory Notes, which we
discuss below.
23. We agree that Clause 18
confirms and affirms the fact that the UK is a dualist system
and that the EU Treaty is no different from any other Treaty.
That is our aim. For the rights and obligations under the EU Treaty
to apply within the UK and to be justiciable before the UK Courts
they must be incorporated into the UK legal system through an
Act of Parliament. However, we disagree that Clause 18 is therefore
unnecessary. We do believe, as we have said in paragraphs 6-11
above, that this needs to be put beyond speculation.
24. We find it difficult to see how Clause 18
could be said to be dangerous for other aspects of sovereignty.
Indeed, that is one of the reasons the clause does not mention
sovereignty in terms but rather focuses on practical effects.
There are no precedents for explicitly referring to Parliamentary
sovereignty in Acts of Parliament.
25. We have been very aware of the need to ensure
that Clause 18 does not inadvertently affect other issues of Parliamentary
sovereignty, and we looked into this very thoroughly. We do not
believe that Clause 18 runs this risk, because it focuses solely
on the status of EU law within the UK, and Parliament's role in
this regard.
Issue 4 Explanatory Notes
26. The report says:
(para 87) 'The Explanatory Notes present as fact
what the evidence we have received tells us is disputed, viewed
from any perspective.'
27. The purpose of the Explanatory Notes is to
assist the reader of the Bill in understanding what the clauses
in the Bill purport to do. The Explanatory Notes are not and should
not be read as being an authoritative statement of academic opinion
on the origins of the principle of Parliamentary sovereignty,
which is an issue which goes far beyond the scope of this Bill.
In the Explanatory Notes, the term "common law" is used
simply to mean law that is not statute law.
Issue 5 Parliament binding its successors?
28. The report says:
(para 90) 'The real point is whether a government
can, in law, make it difficult for a future Parliament to amend
or repeal the legislation it has passed; in our view it cannot.
Our conclusion therefore is straightforward—that an Act
of Parliament applies until it is repealed.'
29. We agree with this conclusion. As the Foreign
Secretary said in the Second Reading on 7 December, the Government
hopes that 'the Bill becomes part of the accepted constitutional
framework of this country.' We have never tried to claim that
it is not legally possible for Parliament to amend this legislation.
We do, however, think there would be political consequences if
a future Government was to take away from the people the right
to have a say over future Treaty changes which transferred power
or competence from the UK to the EU.
Foreign and Commonwealth Office
10 January 2011
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