The Coalition Government’s proposed European Union Bill includes a statement (Clause 18) which purports to put beyond doubt that in the UK ultimate sovereignty rests with Parliament and not the EU. But is this currently true? And if it is not currently the case, does it therefore render such a clause legally meaningless?
In an effort to provide an answer, the report on this question by the House of Commons’ European Scrutiny Committee has benefited from submissions from some of the most senior experts on UK and EU constitutional law. Regrettably, the Foreign Secretary, William Hague, declined the offer to appear before the Committee.
Simply put, the question is whether European law is applicable in the UK by dint of Westminster legislation stating that it is applicable or because Westminster is now subservient to EU and international law?
As the submissions heard by the Committee made clear, there is considerable debate about this very basic point. On one side, there are those who hold to the view developed in the 17th and 18th centuries by Sir Edward Coke and Sir William Blackstone and most forcefully articulated in the 19th century by A.V Dicey that Parliament is supreme. The law is what Parliament legislates to be the law. Consequently, it enacts European legislation only because it has passed legislation – the European Communities Act 1972 – that states its intention to do so. And therefore, if it should pass legislation that clearly stated the will to revoke – in all or in a specific case - that intention, then EU law would not apply in the UK. Thus, by retaining the means to restore its ultimate authority, Parliament has merely chosen to lend out some of its sovereignty rather than irrevocably cede it away. It is a view supported by the late and much lamented former Lord Chief Justice, Lord Bingham, whose view it was that ‘the Crown in Parliament was unconstrained by any entrenched or codified constitution. It could make or unmake any law it wished. Statutes, formally enacted as Acts of Parliament, properly interpreted, enjoyed the highest legal authority.’
This opinion is challenged by those who question the supremacy of Parliament because they hold that sovereignty has become divisible. In this view, Parliament is not free of other commitments and legal entanglements and that, in some circumstances, the judiciary can strike down the will of the legislature. The Deputy President of the Supreme Court, Lord Hope suggests that:
‘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. 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. Although Parliament was careful not to say in terms that it could not enact legislation which was in conflict with Community law, that in practice is the effect of section 2(1) when read with section 2(4) of that Act. The direction in section 2(1) that Community law is to be recognised and available in law and is to be given legal effect without further enactment, which is the method by which the Community Treaties have been implemented, concedes the last word in this matter to the courts. The doctrine of the supremacy of Community law restricts the absolute authority of Parliament to legislate as it wants in this area.’
It is to reinforce Lord Bingham’s view of the British Constitution that a ‘sovereignty clause’ is proposed for the new European Union Bill. Clause 18 states:
‘It is only by virtue of an Act of Parliament that directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom.’
While the intention is to put beyond doubt that ultimate power rests with Westminster, this statement will have no legal value if the judiciary successfully rules that Westminster does not have the power to make such claims in the first place.
Regardless of which view the legal expert witnesses expressed before the Commons’ Committee, they were all but united in the opinion that such a clause would make no difference. If Parliament has never lost its ultimate sovereignty then the clause was merely stating the obvious. But if Parliament has already lost its sovereignty then no statutory statement that it is sovereign has any legal force.
The ultimate decision, in the view of Trevor Allen (Professor of Jurisprudence and Public Law at Cambridge) would therefore have to be taken by the courts. If this is so, then it will be the Supreme Court, not the Houses of Parliament, that decides whether parliamentary sovereignty exists. There are dangers with this approach. As Jeffrey Goldsworthy (Professor of Law at Monash University, author of The Sovereignty of Parliament) puts it, if such sovereignty can be ‘made by the judges’, then they could ‘at any time unmake it if they should come to the view that it is no longer justified.’ An ancient principle is, consequently, potentially at the whim of whoever happens to be serving on the Supreme Court at any one time. Has there ever before been such an opportunity for ‘judicial activism?’
On the one hand, the Supreme Court might uphold the 2002 High Court judgement of Thoburn v Sunderland City Council (the so-called ‘Metric Martyrs’ case) where the argument was rejected that EU membership brings with it the recognition of the supremacy of EU law as an entrenched, autonomous legal order. The ruling for that case was made by Lord Justice Laws that:
‘Parliament cannot bind its successors by stipulating against repeal, wholly or partly, of the European Communities Act (ECA). It cannot stipulate as to the manner and form of any subsequent legislation. It cannot stipulate against implied repeal any more than it can stipulate against express repeal. Thus there is nothing in the ECA which allows the Court of Justice, or any other institutions of the EU, to touch or qualify the conditions of Parliament’s legislative supremacy in the United Kingdom. Not because the legislature chose not to allow it; because by our law it could not allow it. That being so, the legislative and judicial institutions of the EU cannot intrude upon those conditions. The British Parliament has not the authority to authorise any such thing. Being sovereign, it cannot abandon its sovereignty. Accordingly there are no circumstances in which the jurisprudence of the Court of Justice can elevate Community law to a status within the corpus of English domestic law to which it could not aspire by any route of English law itself.’
On the other hand, it may be that the Supreme Court disagrees with Lord Justice Laws and opts instead for the opinion expressed by Professor Allen:
‘The longer we remain a member of the European Union and the more powers that are transferred, the less realistic it becomes, probably, for judges—not to deny that Britain could not withdraw altogether—but the more unrealistic it becomes to expect judges to disapply or, rather, to override EU law in particular instances. I do think there is some possibility there that doctrine may shift in that respect and so we might then see Thoburn as one step towards a larger modification whereby the judges would say, “Well, we must have an explicit repeal or amendment of the European Communities Act.’
In which case, unless the 1972 Act is repealed or amended (which is not likely in the near future), the Coalition Government’s proposed ‘sovereignty clause’ has no legal purchase. Indeed it may invite the law of unintended consequences. Adam Tomkins (Professor of Public Law at Glasgow University) has suggested that by attempting to put on a statutory footing parliamentary supremacy in relation to EU law, questions might be raised as to why no such declaration has been made in relation to other competing claimants. The clause thus ‘goes out of its way to invite litigation.’
It is hard to avoid the same conclusion to that which the European Scrutiny Committee has also come – ‘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.’