The EU Bill and Parliamentary sovereignty: Government Response to the Committee's Tenth Report of Session 2010-11 - European Scrutiny Committee Contents

Appendix: Government response


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.


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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