Chapter 6: Would a British Bill of Rights be subject to EU law?
Supremacy of the EU Charter over a Bill of Rights
114.In the previous Chapter we concluded that the enforcement mechanisms of the EU Charter are stronger than those of the HRA because of the supremacy of EU law over national law. With this in mind, we asked our witnesses to say whether the EU Charter would have supremacy over a Bill of Rights in cases where the Bill of Rights applied to a measure in which the UK was acting within the scope of EU law. Sir David Edward’s view was very clear:
“Almost every other Member State, in one fashion or another, has a Bill of Rights or rights included in the national constitution. It has been consistently said by the Court of Justice that these are national provisions and that the obligation of the state to comply with EU law cannot be refused on the ground of any provision of national law, including constitutional law. That is clear, as a matter of EU law. At the moment, there are a number of cases going on where constitutional courts of the member states have challenged that proposition—notably, over the years, the German Constitutional Court. The reality is that in each case they have tended to retreat.”120
115.Lord Goldsmith agreed: “The European Communities Act, which is an Act of the UK Parliament, requires us to follow and to comply with EU law … Yes, I think we would be obliged still to follow [the EU Charter].”121
116.Professor Dougan summarised this issue differently: “an EU lawyer will tell you that, yes, EU law takes priority over national law. Of course, at the national level the question is: how far do we accept that EU law takes priority over national law? In that regard, the answer to the question is that yes of course we could make an exception if we wanted to.”122 But, in the long term, it was:
“more a political judgment about the costs of refusing to respect the rules of the game, both for the UK—our credibility, our leadership; the sense that we are a leading member of the EU—but also for the authority of the EU as a whole. If one member state starts to take the view that it is not bound by the principle of supremacy, what is to stop the other 27 taking the view that they are not bound by the principle of supremacy? Then we would end up with something more like the United Nations than the European Union.”
117.Professor Douglas-Scott thought the national constitutional implications were increasingly relevant: “generally the doctrine of supremacy of EU law requires national law to give way. But there are some exceptional circumstances where courts have made it clear that there might not be such an obligation if EU law conflicted with some very important constitutional principle of national law.”123 The Secretary of State agreed, citing the UK Supreme Court’s decision in the HS2 case124 in support:
“Lords Mance and Sumption have argued that when Parliament passed the European Communities Act, it could not have envisaged that by passing that Act it would have deliberately sacrificed certain basic constitutional principles. In stating that, they were stating a principle that finds embodiment in the German constitutional court, which is there to safeguard the basic law.”125
The German Federal Constitutional Court as a role model
118.The Secretary of State thought the German Federal Constitutional Court might be a model that the UK Supreme Court could follow:
“Were the European Union to legislate in a way that the German constitutional court felt was contrary to the basic law, the constitutional court could express an opinion. Therefore, there is a live question … as to whether or not our Supreme Court should be encouraged, facilitated, legislated, to become a constitutional court similar to the German constitutional court, and therefore have the capacity to say that in certain areas the European Union’s legislation ran counter to certain basic British freedoms.”126
119.We referred the Secretary of State to a lecture given by the President of the German Federal Constitutional Court in October 2013,127 in which the President said that EU law was accorded primacy over national law in Germany, including over the German constitution:
“In their case law, the Federal Constitutional Court and the European Court of Justice fundamentally agree, however, that EU law is in principle accorded primacy over national law … Article 23 of the Basic Law permits the transfer of sovereign powers to the European Union by means of an act of parliament authorising the transfer. If on the basis of this empowerment institutions and bodies of the EU issue legal acts, those legal acts then as a matter of principle have primacy over German national law, even its constitutional law.”128
120.The Secretary of State replied that:
“it is certainly the case that the [German] Constitutional Court has not struck down European Union law at any point, but I think it is a moot point as to whether it has the ability to do so. In the same way, I think that Lord Mance and Lord Sumption made it clear … that if they felt that any point the European Union law ran counter to what they considered to be basic constitutional principles, the court would seek to assert itself”.129
121.The EU Select Committee touched on this issue when it took evidence from two members of the German Bundestag, Axel Schäfer MdB and Detlef Seif MdB, in the course of its inquiry on EU reform.130 Mr Seif confirmed that the German Federal Constitutional Court had the power to quash laws passed by the Bundestag, and so might not be a suitable model for the UK’s Supreme Court to follow:
“The constitutional court in Germany was introduced to make sure that every new law and political decision was in keeping with the basic law to prevent a breach of the guaranteed principles (Article 79.3). If you were to consider having such a court, you would have to have a Supreme Court that is absolutely independent of the political process and of the judiciary below it. It would be a court that could repeal any Acts of Parliament, so you have to ask yourself whether that is really what you want to have. Otherwise, it will probably remain a German solution only.”131
Conclusions
122.The traditional view is that EU law has primacy over national law, and therefore that the EU Charter would have primacy over the Bill of Rights. Several witnesses doubted this, however, citing instances in which courts have made it clear that there might not be an obligation to follow EU law if it conflicted with a significant constitutional principle of national law.
123.The model of the German Federal Constitutional Court, advocated by the Secretary of State as one our own Supreme Court could follow, appears ill-suited to the UK’s constitutional context. First, the German Basic Law gives primacy to EU law. Secondly, even though EU law can be overridden if inconsistent with the Basic Law, the German Federal Constitutional Court has yet to strike down EU legislation on this ground. Thirdly, the German Federal Constitutional Court has the power to strike down the legislation of the German Parliament if it considers it to be contrary to the Basic Law. We question whether this is a model the UK, with its constitutional principle of Parliamentary sovereignty, would want to follow.
124 R (on the application of HS2 Action Alliance Ltd and others) v The Secretary of State for Transport [2014] UKSC 3. See also the case of Pham v Secretary of State for the Home Department [2015] UKSC 19.
127 European Integration and the Bundesverfassungsgericht, Sir Thomas More Lecture at the Honourable Society of Lincoln`s Inn, London, 31 October 2013, by Prof Dr. Andreas Voßkuhle, President of the Bundesverfassungsgericht: http://www.lincolnsinn.org.uk/images/word/education/euro/Thomas%20More%20Lecture%20Oct%202013.pdf [accessed 27 April 2016]
128 Ibid.
130 European Union Committee, The EU referendum and EU reform (9th Report, Session 2015–16, HL Paper 122)
131 Oral evidence taken before the EU Select Committee, 9 February 2016 (Session 2015–16), Q 187. See also Lord Pannick ‘A constitutional court should not be created for political purposes’, The Times (11 February 2016): “The insuperable political problem faced by the Prime Minister is that however much sovereignty the House of Commons enjoys, we cannot refuse to accept part of EU law (as determined by the Court of Justice) while we remain a member of the EU. That problem cannot be avoided by creating a constitutional court.” Available at http://www.thetimes.co.uk/tto/opinion/columnists/article4687556.ece