The EU Bill and Parliamentary sovereignty · The EU Bill and Parliamentary sovereignty Tenth Report...

House of Commons

European Scrutiny Committee

The EU Bill and Parliamentary sovereignty

Tenth Report of Session 2010–11

Volume II

Written and oral evidence Ordered by The House of Commons to be printed 6 December 2010

HC 633-II Published on 7 December 2010

by authority of the House of Commons London: The Stationery Office Limited

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The European Scrutiny Committee

The European Scrutiny Committee is appointed under Standing Order No.143 to examine European Union documents and— a) to report its opinion on the legal and political importance of each such document and, where it considers appropriate, to report also on the reasons for its opinion and on any matters of principle, policy or law which may be affected; b) to make recommendations for the further consideration of any such document pursuant to Standing Order No. 119 (European Committees); and c) to consider any issue arising upon any such document or group of documents, or related matters. The expression “European Union document” covers — i) any proposal under the Community Treaties for legislation by the Council or the Council acting jointly with the European Parliament; ii) any document which is published for submission to the European Council, the Council or the European Central Bank; iii) any proposal for a common strategy, a joint action or a common position under Title V of the Treaty on European Union which is prepared for submission to the Council or to the European Council; iv) any proposal for a common position, framework decision, decision or a convention under Title VI of the Treaty on European Union which is prepared for submission to the Council; v) any document (not falling within (ii), (iii) or (iv) above) which is published by one Union institution for or with a view to submission to another Union institution and which does not relate exclusively to consideration of any proposal for legislation; vi) any other document relating to European Union matters deposited in the House by a Minister of the Crown. The Committee’s powers are set out in Standing Order No. 143. The scrutiny reserve resolution, passed by the House, provides that Ministers should not give agreement to EU proposals which have not been cleared by the European Scrutiny Committee, or on which, when they have been recommended by the Committee for debate, the House has not yet agreed a resolution. The scrutiny reserve resolution is printed with the House’s Standing Orders, which are available at www.parliament.uk. Current membership Mr William Cash MP (Conservative, Stone) (Chair) Mr James Clappison MP (Conservative, Hertsmere) Michael Connarty MP (Labour, Linlithgow and East Falkirk) Jim Dobbin MP (Labour/Co-op, Heywood and Middleton) Julie Elliott MP (Labour, Sunderland Central) Tim Farron MP (Liberal Democrat, Westmorland and Lonsdale) Nia Griffith MP (Labour, Llanelli) Chris Heaton-Harris MP (Conservative, Daventry) Kelvin Hopkins MP (Labour, Luton North) Chris Kelly MP (Conservative, Dudley South) Tony Lloyd MP (Labour, Manchester Central) Penny Mordaunt MP (Conservative, Portsmouth North) Stephen Phillips MP (Conservative, Sleaford and North Hykeham) Jacob Rees-Mogg MP (Conservative, North East Somerset) Henry Smith MP (Conservative, Crawley) Ian Swales MP (Liberal Democrat, Redcar)

List of written evidence

1 Professor Adam Tomkins, University of Glasgow Ev 1

2 Professor Philip Allott, University of Cambridge Ev 7

3 Professor Trevor Hartley, London School of Economics Ev 9

4 Professor Michael Dougan, University of Liverpool Ev 11; Ev 32

5 Professor Paul Craig, University of Oxford Ev 13

6 Andrew Duff MEP Ev 21

7 Professor Anthony Bradley, University of Oxford Ev 24

8 Professor Trevor Allan, University of Cambridge Ev 26

9 Professor Vernon Bogdanor, University of Oxford Ev 28

10 Martin Howe QC Ev 29

11 Professor Jeffrey Goldsworthy, Monash University, Australia Ev 31

12 Jean-Claude Piris, Legal Counsel of the European Council Ev 39

13 Foreign and Commonwealth Office Ev 40

14 Professor Richard Rose, University of Aberdeen Ev 43

15 Professor Simon Hix, London School of Economics and Political Science Ev 44

16 Professor Ken Minogue, London School of Economics and Political Science Ev 47

List of witnesses

Monday 22 November 2010 Page

Professor Paul Craig, Professor in English Law, St John’s College, University of Oxford. 51

Professor Trevor Hartley, London School of Economics. 57

Thursday 25 November 2010

Professor Trevor Allan, Professor of Public Law and Jurisprudence, Pembroke College, University of Cambridge, and Professor Anthony Bradley, Research Fellow, Institute of European and Comparative Law, University of Oxford. 62

Professor Adam Tomkins, John Millar Professor of Public Law, University of Glasgow. 71

Monday 6 December 2010

Mr David Lidington MP, Minister for Europe, Ms Alison Rose, Head of Communications, Institutions, Treaty and Iberia Group, and Mr Ivan Smyth, Legal Adviser, Foreign and Commonwealth Office. 79

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European Scrutiny Committee: Evidence Ev 1

Written evidence

Written Evidence from Professor Adam Tomkins, John Millar Professor of Public Law, University ofGlasgow

CLAUSE 18 OF THE BILL: PARLIAMENTARY SOVEREIGNTY AND EU LAW

Introduction

1. This evidence is submitted to the House of Commons European Scrutiny Committee as part of its inquiryinto the European Union Bill. This evidence is concerned principally with Clause 18 of the Bill.

2. The evidence is submitted by Professor Adam Tomkins, John Millar Professor of Public Law in theUniversity of Glasgow. I am an academic specialising in constitutional law. Part of the evidence is drawn frommy publications: in particular, A Tomkins Public Law, (Oxford University Press, 2003) and C Turpin and ATomkins, British Government and the Constitution (Cambridge University Press, 6th ed 2007).

3. In addition to being a Professor of Law at Glasgow I am also a legal adviser to the House of Lords SelectCommittee on the Constitution. This evidence is submitted solely in a personal capacity. Nothing written hereis to be taken as representing the view of any member, committee or official of the House of Lords.

Definition of parliamentary sovereignty

4. Dicey’s definition of parliamentary sovereignty (The Law of the Constitution (1885), pp 39–40) wasas follows:

The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament. . . has, under the English constitution, the right to make or unmake any law whatever; and, further, thatno person or body is recognised by the law of England as having a right to override or set aside thelegislation of Parliament.

5. The sovereignty of Parliament is a doctrine whose cardinal importance to the British constitution wouldbe difficult to exaggerate. As the “keystone” of the constitution (as Dicey called it), what is meant is that thedoctrine is no less than “the central principle” of the system, “on which all the rest depends” (to quote fromthe OED).

6. What the doctrine establishes is the legal supremacy of statute. It means that there is no source of lawhigher than—ie more authoritative than—an Act of Parliament. Parliament may by statute make or unmakeany law, including a law that is violative of international law or that alters a principle of the common law. Andthe courts are obliged to uphold and enforce it.

7. There is an issue about what is the legal source of the rule that Parliament is sovereign. This matter ishighly pertinent to clause 18 of the EU Bill and I address it in detail later in this evidence.

8. It may assist the Committee if I declare at this point that, as an academic constitutional lawyer and as acitizen and voter I like the doctrine of parliamentary sovereignty. Unlike several of my colleagues in the worldof constitutional law I have never argued that the doctrine of parliamentary sovereignty should be replacedwith a power whereby the courts may quash legislation if they rule it to be unconstitutional or otherwise illegal.While I seek to advocate a strong and robust role for the courts in enforcing the rule of law, I am not of theview that the courts should be permitted to quash Acts of Parliament. I also see myself, for what it is worth,as being pro-European. While I am deeply critical of a number of aspects of the law and politics of theEuropean Union (and I have been particularly critical of some of the ECJ’s case law), I do consider that it isin the United Kingdom’s clear interest to remain a committed member of the EU.

Challenges to parliamentary sovereignty: (1) EU law

9. When the United Kingdom joined the European Community (now the European Union) in 1972 it wasalready an established principle of the Community legal order that laws issuing from it, within the areas ofCommunity competence, should have supreme authority in all the Member States. To this end the EuropeanCourt of Justice insisted that the Member States had, in transferring powers to the Community, necessarilylimited their own sovereign authority (see Case 26/62 Van Gend en Loos [1963] ECR 1 and Case 6/64 Costav ENEL [1964] ECR 585). Accordingly, the European Communities Act 1972 provides that UK legislation—including Acts of Parliament—is to have effect subject to authoritative provisions of Community law.

10. The most important instance to date of this matter being litigated in the courts is the Factortame saga.The background is as follows. Parliament enacted the Merchant Shipping Act 1988, Part II of which specifiedrequirements for the registration of fishing vessels as British (whose catches would then count as part of theBritish quota). The Act stipulated that only British-owned vessels managed and controlled from within theUnited Kingdom could be registered as British fishing vessels. As a result ninety-five fishing vessels, previouslyregistered as British under an Act of 1894 but managed and controlled from Spain or owned by Spanishnationals, would not qualify for registration under the 1988 Act. The owners of these vessels sought judicialreview, claiming a declaration that the 1988 legislation should not apply to them.

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Ev 2 European Scrutiny Committee: Evidence

11. The Divisional Court decided to obtain a preliminary ruling from the European Court of Justice under(what is now) Article 267 TFEU on the questions of EU law arising in the case. Since there would be a delaybefore the ruling of the Court of Justice was given and the owners of the fishing vessels would suffer hardshipif obliged to refrain from fishing in the meantime, the Divisional Court granted interim relief, ordering thatPart II of the 1988 Act should be “disapplied”. In R v Secretary of State for Transport, ex parte Factortame(No 1) [1990] 2 AC 85 the House of Lords held that the Divisional Court had had no power, as a matter ofEnglish law, to make an interim order in such terms. The House of Lords then went on to consider whether anappropriate interim remedy might be available to the applicants as a matter of European law. Their Lordshipsdecided that EU law on the matter was unsettled and accordingly sent a second reference to the Court of Justice.

12. The ECJ held that a national court was obliged to set aside provisions of domestic law which mightprevent rights in EU law from having full force and effect. The House of Lords then granted an injunctionagainst the Secretary of State, requiring him to suspend the application of the requirements of British residenceand domicile in the Merchant Shipping Act to nationals of other Member States: R v Secretary of State forTransport, ex parte Factortame (No 2) [1991] 1 AC 603.

13. In this profoundly important decision, the House of Lords acknowledged that its obligation to complywith a principle of EU law as affirmed by the European Court of Justice required it to deny effect to theterms of an Act of Parliament. In the course of his opinion in Factortame (No 2) Lord Bridge made thefollowing observations:

Some public comments on the decision of the European Court of Justice, affirming the jurisdiction of thecourts of Member States to override national legislation if necessary to enable interim relief to be grantedin protection of rights under Community law, have suggested that this was a novel and dangerous invasionby a Community institution of the sovereignty of the United Kingdom Parliament. But such commentsare based on a misconception. If the supremacy within the European Community of Community law overthe national law of Member States was not always inherent in the E.E.C. Treaty it was certainly wellestablished in the jurisprudence of the European Court of Justice long before the United Kingdom joinedthe Community. Thus, whatever limitation of its sovereignty Parliament accepted when it enacted theEuropean Communities Act 1972 was entirely voluntary. Under the terms of the Act of 1972 it has alwaysbeen clear that it was the duty of a United Kingdom court, when delivering final judgment, to overrideany rule of national law found to be in conflict with any directly enforceable rule of Community law …Thus there is nothing in any way novel in according supremacy to rules of Community law in those areasto which they apply …

14. Academic opinion is divided on how this decision should be interpreted. There are perhaps two maincamps, which may be dubbed the ‘revolution view’ and the “evolution view”. Leading the former was the lateSir William Wade, who argued (in “Sovereignty: revolution or evolution?” (1996) 112 Law Quarterly Review568) that a constitutional revolution had occurred because the House of Lords had recognised that the resultof the European Communities Act 1972 was that future Parliaments were, unless and until they expresslyrepealed it, bound by its terms. Parliament remained sovereign in the sense that it retained the power expresslyto repeal the 1972 Act (thereby necessitating, presumably, the United Kingdom’s withdrawal from the EuropeanUnion), but for as long as the United Kingdom continued to be a member of the European Union on the termsset out in the 1972 Act, the United Kingdom Parliament remained tied to the terms of that statute.

15. An alternative, more evolutionary, set of views has been suggested by a variety of commentators,including Sir John Laws and Professor TRS Allan. Sir John Laws (a Lord Justice of Appeal) has argued asfollows (“Law and democracy” [1995] Public Law 72, 89):

The effect is that section 2(4) of the European Communities Act falls to be treated as establishing a ruleof construction for later statutes, so that any such statute has to be read (whatever its words) as compatiblewith rights accorded by European Law. Sir William Wade regards this development as “revolutionary”,because in his view it represents an exception to the rule that Parliament cannot bind its successors. ButI do not think that is right. It is elementary that Parliament possesses the power to repeal the EuropeanCommunities Act in whole or in part (I leave aside the political realities); and the most that can be said,in my view, is that the House of Lords’ acknowledgement of the force of European law means that therule of construction implanted by section 2(4) cannot be abrogated by an implied repeal. Express wordswould be required. That, however, is hardly revolutionary: there are a number of areas where a particularstatutory construction is only likely to be accepted by the courts if it is vouchsafed by express provision[as where a statute is said to exact taxes, impose criminal liability or to have retroactive effect]. AlthoughFactortame … undoubtedly demonstrate[s] what may be described as a devolution of legislative power toEurope, it is no true devolution of sovereignty. In legal (though certainly not political) terms, the organsof European legislation may in truth be described, for so long as the Act of 1972 remains on the statutebook, as Parliament’s delegates; the law of Europe is not a higher-order law, because the limits which forthe time being it sets to the power of Parliament are at the grace of Parliament itself.

16. Professor Allan’s challenge to Wade is slightly different. He attacks the jurisprudential basis of Wade’saccount of sovereignty. For Wade, the sovereignty of Parliament is ultimately a judicially recognised “politicalfact”. And when the judges recognise that the political facts have changed, the meaning of sovereignty changesaccordingly. So, for Wade, what the House of Lords recognised in Factortame (No 2) was that the politicalfact of sovereignty had changed—Parliament since 1972 legislates not in the splendid isolation of a supreme

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being but in a geo-political environment in which the United Kingdom is a loyal member of the EuropeanUnion. Allan disputes this analysis on the basis that sovereignty should be seen, not as judicial recognition ofpolitical fact, but as a rule of the common law based on reason just like any other rule of the common law.For him, what occurred in Factortame (No 2), “far from any dramatic, let alone unauthorised, change”, was that“the House of Lords merely determined what the existing constitutional order required in novel circumstances”(‘Parliamentary sovereignty: law, politics, and revolution’ (1997) 113 Law Quarterly Review 443, 445). As herecognises and, indeed, welcomes, the consequences of Professor Allan’s analysis are potentially great (pp448–9): “If it is possible to recognise limits on the power of Parliament to enact legislation which conflictswith [EU] law, even if only to the extent of requiring express wording, it is equally possible to countenanceother limits on parliamentary sovereignty which reflect the demands of constitutional principle. Since therequirement of judicial obedience to statutes constitutes a principle of common law . . . its nature and scopeare matters of reason, governed by our understanding of the constitution as a whole.”

17. This distinction between the “political fact” and “common law” schools of thought is directly relevantin terms of clause 18 of the European Union Bill, and I shall return to it later in this evidence.

18. My own conclusions as to how Factortame (No 2) is best understood are as follows. As will be seen, Iagree with Wade that the source of the doctrine of parliamentary sovereignty is “judicial recognition of politicalfact” rather than the common law simpliciter; but I do not agree with him that Factortame (No 2) was arevolutionary decision. What follows is adapted from Tomkins, Public Law (2003), chapter 4:

In order to examine exactly what the House of Lords decided in Factortame (No 2), and how it fits in tothe doctrine of legislative supremacy, we must start with the terms of the European Communities Act1972. The key provision is section 3(1). The House of Lords decided in Factortame that, in the light ofthe ruling from the ECJ, the applicants were as a matter of Community law entitled to the protection ofinterim relief. In other words, the House of Lords granted the remedy not in its capacity as a court ofEnglish law, but specifically in its capacity as a court empowered to determine questions of Communitylaw. Now, from where did the House of Lords get its power to determine questions of Community law?The answer is section 3(1) of the ECA. Courts in the United Kingdom possess the power to determinequestions of Community law for one reason and for one reason only: namely, because Parliament legislatedso as to confer that power on them, in section 3(1) of the ECA.

On this reading, all the House of Lords did in Factortame was to enforce the will of Parliament as laiddown in statute. Parliament legislated in 1972 that courts in the United Kingdom were to enforceCommunity law, and that what the House of Lords did. Factortame was a case in which, acting underinstructions contained in the 1972 Act, the House of Lords enforced Community law, and the legislativesupremacy of Acts of the United Kingdom Parliament has never been a doctrine of Community law: onlyof English law. The House of Lords did not take on a jurisdiction to enforce Community law because theEuropean Court of Justice required that it do so, or because the House of Lords volunteered for it, butbecause Parliament legislated for it, in section 3(1). There was no revolution here. Factortame could beread as revolutionary only if it were read as a case decided under the rules of English law, and such areading would be in grave error, as the opening paragraph of Lord Bridge’s speech in the case shows.Lord Bridge explained perfectly clearly that, whereas Factortame (No 1) had been decided by the Houseof Lords in its capacity as a court of English law, the question in Factortame (No 2) was “whetherCommunity law [has] invested us with . . . jurisdiction” to grant interim relief in certain circumstances.

What then are the implications of the decision for the doctrine of legislative supremacy? Recall that thereare two limbs to the doctrine. The first is that Parliament may make or unmake any law whatsoever. Isthis still the case? Does Parliament, post-Factortame, retain the power to make or unmake any law? Theanswer is absolutely, yes. There is nothing in Factortame to suggest that Parliament cannot make a law thatis contrary to Community law. Parliament might have difficulties in having its law effectively enforced, butthat is a separate issue and does not speak to Parliament’s capacity to make law. The first limb of thedoctrine of legislative supremacy is thus untouched by Factortame.

The second limb provides that nobody may override or set aside an Act of Parliament. Now, as a matterof English law this remains the case, but as a matter of European Community law it never was the case:from as long ago as 1964—eight years before the United Kingdom joined the Community—it was clearfrom the case law of the Court of Justice that in a conflict between national law and directly applicableor directly effective Community law, the latter would as a matter of Community law prevail over theformer. As soon as the House of Lords (and all other courts in the United Kingdom) became empoweredby section 3(1) of the ECA to determine questions of Community law, it was clear from reading the textof the 1972 Act alongside the pre-existing jurisprudence of the Court of Justice that it was no longer truethat nobody in England could set aside an Act of Parliament.

To clarify: it remains the case that under English law nobody has the power to override or to set aside astatute, but it is no longer the case that English law is the only law that is applicable in England. Since1 January 1973 there have been two legal systems operating in this country, not one, and the doctrine ofthe legislative supremacy of statute is a doctrine known to only one of those two systems. This is not arevolution: it is rather the incorporation of a new legal order into a very old country. European Communitylaw is, moreover, a new legal order that is to be enforced by the same courts as enforce domestic law.They may be the same courts, but they are not enforcing the same law. The House of Lords is one courtwith two jurisdictions, one in domestic law (which does not allow the court to set aside a statute) and one



in Community law (which in certain circumstances does). Thus, as these legal systems currently stand,the doctrine of legislative supremacy may be stated as follows: Parliament may make or unmake any lawwhatsoever, and under English law nobody may override or set aside a statute.

19. Could Parliament reclaim the fullness of its sovereignty? Parliament retains its ultimate sovereignty aslong as it has the power to terminate the application of EU law in the United Kingdom (and its overridingforce) by repealing or further amending the European Communities Act 1972. It is hardly open to doubt thatthe Queen’s courts would give effect to an Act of Parliament which was passed in the process of effecting awithdrawal from the Union.

20. Meanwhile it is conceivable that Parliament might legislate deliberately in contradiction of a rule of EUlaw, perhaps even with the expressly stated purpose of negating the effect of the rule in the United Kingdom.A bill to this effect was introduced in Parliament in 2005 (the Food Supplements (European Communities Act1972 Disapplication) Bill). The bill’s long title stated that it was “to provide that a specified Communityinstrument relating to food supplements shall not have effect in the United Kingdom notwithstanding theprovisions of the European Communities Act 1972”. To this end, clause 1 of the bill provided that“Notwithstanding the provisions of the European Communities Act 1972 (a) Directive 2002/46/EC . . . on theapproximation of the laws of the Member States relating to food supplements, and (b) any judgment of theEuropean Court of Justice relating to the [directive], shall not have effect in the United Kingdom”.

21. If an Act were to be passed in terms such as these the courts could not refuse to apply it without assertinga power which our constitution has not hitherto accorded to them and to which no English court has yet laidclaim. Should the issue arise, however, the response of the British courts cannot be predicted with certainty.(One thing is likely, however: the Commission would bring infringement proceedings before the Court ofJustice against the United Kingdom (under Article 258 TFEU) and, if the United Kingdom ignored the Court’sjudgment, the country would be heavily fined under the penalty payment procedure of Article 260 TFEU. Whatwould happen if the United Kingdom refused to pay such a penalty payment, insisting on its nationalsovereignty, is a question which has not yet arisen in the history of the European Union and which, in anyevent, cannot be answered by reference to law alone.)

Challenges to parliamentary sovereignty: (2) Common law radicalism

22. The past twenty years or so have seen a remarkable renaissance in what might be called common lawradicalism. Common law radicals believe that the entire constitution, including the doctrine of the sovereigntyof Parliament, is based on the common law: an example of this sort of thinking was provided above byProfessor Allan’s account of Factortame (No 2).

23. In Jackson v Attorney General [2005] UKHL 56, [2006] 1 AC 262 a challenge was launched to theconstitutional validity of the Hunting Act 2004 and the Parliament Act 1949. The case had nothing to do withEU law but is the most recent leading decision on the law of parliamentary sovereignty. It is directly relevantto a number of the issues raised in the Committee’s call for evidence. Technically, the comments made inJackson about the sovereignty of Parliament were obiter and, moreover, they were uttered in the context oflitigation concerning statutes passed without the consent of the House of Lords. It may therefore be that theyprove to be of little precedential value. That said, however, their Lordships’ opinions do not expressly statethat their comments about parliamentary sovereignty should apply only in the context of legislation passedunder the Parliament Act procedure.

24. Among the most interesting obiter comments in Jackson are the following from Lords Bingham, Steynand Hope.

Lord Bingham: The bedrock of the British constitution is, and in 1911 was, the supremacy of the Crownin Parliament . . . Then, as now, the Crown in Parliament was unconstrained by any entrenched or codifiedconstitution. It could make or unmake any law it wished. Statutes, formally enacted as Acts of Parliament,properly interpreted, enjoyed the highest legal authority.

Lord Steyn: We do not in the United Kingdom have an uncontrolled constitution . . . In the Europeancontext the second Factortame decision made that clear: [1991] 1 AC 603. The settlement contained inthe Scotland Act 1998 also points to a divided sovereignty. Moreover, the European Convention on HumanRights as incorporated into our law by the Human Rights Act 1998 created a new legal order . . . Theclassic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as itwas, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy ofParliament is still the general principle of our constitution. 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 principleestablished on a different hypothesis of constitutionalism. In exceptional circumstances involving anattempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the Houseof Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental whicheven a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish. Itis not necessary to explore the ramifications of this question in this opinion. No such issues arise on thepresent appeal.

Lord Hope: Our constitution is dominated by the sovereignty of Parliament. But parliamentarysovereignty is no longer, if it ever was, absolute . . . Step by step, gradually but surely, the English



principle of the absolute sovereignty of Parliament which Dicey derived from Coke and Blackstone isbeing qualified . . .

The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based. . .

Each of the two main parties has made use of the 1949 Act’s timetable, and in subsequent legislationpassed by both Houses each of these Acts has been dealt with in a way that has acknowledged its validity. . . The political reality is that of a general acceptance by all the main parties and by both Houses of theamended timetable which the 1949 Act introduced. I do not think that it is open to a court of law toignore that reality . . .

Trust will be eroded if the [Parliament Act] procedure is used to enact measures which are, as Lord Steynputs it, exorbitant or are not proportionate. Nevertheless, the final exercise of judgment on these mattersmust be left to the House of Commons as the elected chamber.

25. Several comments may be made about these passages. First, as the contrast of approaches between LordBingham on the one hand and Lords Steyn and Hope on the other illustrates, their Lordships were far fromunanimous in terms of their thoughts about sovereignty. For Lord Bingham, outwith contexts in which theEuropean Union was relevant there was no difference between the doctrine of sovereignty as it stood in 1911and the doctrine of sovereignty now. For Lords Steyn and Hope, by contrast, even if the sovereignty ofParliament persists as a “general” doctrine, it does so in a way that is heavily qualified both by statute and bythe common law. For Lord Steyn, moreover, Dicey’s account, while apparently accepted by Lord Bingham, is“out of place in the modern United Kingdom”.

26. Secondly, is there not something curious about the construction of Lord Steyn’s argument? He cites threerespects in which, in his view, the sovereignty of Parliament is now limited. These are: the United Kingdom’smembership of the European Union, the devolution “settlement” of 1998, and the incorporation by the HumanRights Act of fundamental rights into domestic law. Each of these, it is to be observed, came about as a resultof legislation. Yet from this starting point his Lordship goes on to state that the sovereignty of Parliament is a“construct of the common law”, “created” by judges and alterable by them. Even if this is correct (and I submitbelow that it is incorrect) the conclusion does not follow from the evidence his Lordship cites. The changes heoutlines were made through legislation by Parliament; not through common law adjudication by judges.

27. Thirdly, two of Lord Steyn’s descriptions are worth noting. First, he describes the devolution legislationof 1998 as pointing to ‘a divided sovereignty’. It is not at all clear what this means. The Scottish Parliament,created by the Scotland Act 1998, which his Lordship cites, is anything but a sovereign legislature, as theScotland Act makes abundantly plain. Moreover, the existence of the Scottish Parliament has done nothing tolimit the legal power of the Westminster Parliament to legislate for Scotland, even on ostensibly devolvedmatters: see Scotland Act 1998, section 28(7). The political reality may for the time being be that theWestminster Parliament will not legislate for Scotland on devolved matters without the consent of the ScottishParliament, but this behaviour results from a political agreement and has nothing to do with the legal principlesthat Lord Steyn is concerned with. Secondly, he describes the Human Rights Act as having created a “newlegal order”. This is obvious mimicry of the European Court of Justice, which in 1963 famously described theEuropean Union as having created a “new legal order of international law”, a new legal order that dealt withmatters of national sovereignty, for example, differently from the way in which they were understood inordinary international law. Again, however, is his Lordship’s terminology not somewhat tendentious? TheHuman Rights Act seeks to balance Convention rights with parliamentary sovereignty, and seeks to ensure thatthe sovereignty of Parliament is preserved in the scheme of the Act. It is to be noted that Lord Steyn’s dictain Jackson were subsequently described as ‘”unargued and unsound”, “historically false”, and “jurisprudentiallyabsurd” (R Ekins, ‘Acts of Parliament and the Parliament Acts’ (2007) 123 Law Quarterly Review 91, 103)and, moreover, that Lord Bingham seemed to ally himself with these criticisms in his 2007 CommemorationLecture delivered at King’s College London, in which he stated that Lord Steyn’s comments ‘did not bear onan issue which had to be decided in the case and therefore have no authority as precedent’.

28. Fourthly, there is some difficulty in reconciling all of the statements that Lord Hope makes. He startswith the rather sweeping proposition that the rule of law is the “ultimate controlling factor on which ourconstitution is based”. This sounds very much like the common law radicalism of Lord Steyn and others, butLord Hope goes on to make two further comments, which seem significantly to dent the extent to which hecan really believe what he says about the rule of law. First, he offers as a reason for the court holding that theParliament Act 1949 is valid that each of the two main political parties has made use of the Act, that bothHouses of Parliament have treated legislation made under the Act as valid, that the political reality is of a“general acceptance” of the Act’s procedures and, moreover, that ‘it is not open to a court of law to ignore thatreality’. Secondly, and similarly, he states that the “final exercise of judgment” as to when the Parliament Actprocedures may be used should be left to the House of Commons “as the elected chamber”, not to a court oflaw. Now, if the constitution really were based on the rule of law as its “ultimate controlling factor”, neitherof these would be the case. Neither the “political reality” nor the judgment of the House of Commons wouldstand in the way of the court stating that the rule of law had been violated. The rule of law would trump both.As it is, Lord Hope holds that the rule of law has to be conditioned by—has to give way, even?—to politicalreality and to the Commons’ democratic superiority.



29. Finally, and related to the previous point, what is perhaps most important about Lord Hope’s opinion isthe reliance he places on political fact. This brings us back to what Sir William Wade wrote about thesovereignty of Parliament half a century before Jackson was decided (see ‘The legal basis of sovereignty’[1955] Cambridge Law Journal 172). What is the source of the authority for the proposition that Acts ofParliament enjoy legal supremacy in the British constitution? Lord Steyn, Professor Allan and the commonlaw radicals say that it is a rule of the common law, which, like any other rule of the common law, was createdand may be altered by the courts. Sir William Wade and Lord Hope, however, take the view that its source liesin political fact—or, more precisely, in judicial recognition of political fact. As Wade argued, it was the politicalfact of Parliament’s seventeenth-century victories over the Crown that the courts took into account whenarticulating the orthodoxy of parliamentary sovereignty. Similarly, the political facts of the United Kingdom’smembership of the European Union and of its incorporation into domestic law of Convention rights may berecognised by the courts as conditioning the constitutional environment in which the doctrine of sovereigntynow operates.

30. Lord Bingham, in his 2007 Commemoration Lecture delivered at King’s College London, to my mindcorrectly stated that it has been ‘convincingly shown that the principle of parliamentary sovereignty has beenrecognised as fundamental in this country not because the judges invented it but because it has for centuriesbeen accepted as such by judges and others officially concerned in the operation of our constitutional system.The judges did not by themselves establish the principle and they cannot, by themselves, change it.’

Conclusions

31. For the above reasons, my principal conclusions for the Committee are as follows.

32. The doctrine of the sovereignty of Parliament is better understood as having its legal source in judicialrecognition of political fact than in the common law. The Bill’s explanatory notes talk (para 8) of the “commonlaw principle of Parliamentary sovereignty”. It would be preferable for this to be corrected, so that bothGovernment and Parliament are clear.

33. European Union law is far from being the only contemporary challenge to the doctrine of parliamentarysovereignty. Human rights law and, indeed, the common law itself, also pose potent challenges. For Parliamentto assert its legislative supremacy fully, it would have to deal with these challenges as well as with that posedby EU law. Clause 18 is silent as to these challenges. If anything, this may make the situation more fluid ratherthan less. Parliament addressing but one of the contemporary challenges to its sovereignty may be taken insome quarters as representing parliamentary acceptance (or even approval) of the other such challenges. It doesnot take much to imagine ingenious lawyers crafting arguments to the court to the effect that old concernsabout parliamentary sovereignty need no longer detain us in the contexts of human rights or of the developmentof the common law as, when Parliament took the opportunity to legislate on sovereignty it chose to do so onlyin the context of the EU, leaving human rights law and the common law free. With this in mind, there is anargument that Parliament would be better advised either to legislate for sovereignty in the round or to leavethe subject alone altogether. Partial legislation on sovereignty, such as clause 18, may yet be the most dangerousoption of all.

34. Even within the context of parliamentary sovereignty and EU law, the scope of clause 18 is severelylimited. This is because it does nothing to stem the further growth of competence creep. While other provisionsin the Bill address legislative transfers of competence and/or power, there is nothing in the Bill—and certainlynothing in clause 18—which addresses the problem of the further development of EU law at the hands of theEuropean Courts. Let us not forget that many of the doctrines of EU law that have posed the greatest challengefor parliamentary sovereignty find their origin not in the articles of the Treaties, nor even in Europeanlegislation, but in the case law of the ECJ. This is true, for example, of the doctrine of supremacy (Costa), ofdirect effect (Van Gend en Loos), of indirect effect (Marleasing), of State liability (Francovich and Factortame(No 3)), as well as many others. The law of European citizenship has been aggressively developed by the Courtso as significantly to extend the reach of EU law. And the law pertaining to the Charter of Fundamental Rightsmay be about to be likewise developed by that Court. Indeed, the first signs are already emerging that this isprecisely what will happen (see, eg, the Opinion of the Advocate General in Case C-34/09 Zambrano). Neitherclause 18 nor any other provision in the Bill safeguards the United Kingdom from the further development ofEU law by the ECJ.

35. For all of these reasons, clause 18 as presently drafted may be seen as an opportunity missed.Parliamentary sovereignty is under considerable challenge from multiple sources. For those who seek its robustdefence and protection, clause 18 falls substantially short of the mark.

36. None of which is to say that Parliament would necessarily be acting wisely to legislate in forthright orcomprehensive terms in defence of parliamentary sovereignty. Courts tend to be jealous in the protection ofwhat they see as their rightful jurisdiction, and they do not generally react favourably to attempts to diminishit or to remove it from them. If Parliament is of the view that its sovereignty requires to freshly articulated andsafeguarded in legislation, it would be well advised to proceed with great care and caution, lest theconsequences of its actions come to be seen as the proverbial red rag to the bull.

November 2010



Written evidence from Philip Allott, Professor Emeritus of International Public Law, CambridgeUniversity Fellow, Trinity College, University of Cambridge

Clause 18

1. The word “only” is incorrect and should be deleted.

(1) Direct applicability and direct effect of EU law in the United Kingdom are a product of three things—(a) our international legal obligations (the Accession Treaty, and subsequent treaties); (b) EU law; and (c)parliamentary legislation (the European Communities Act 1972, as amended).

(2) The 1972 Act makes it clear that it is designed to produce its effect in conjunction with EU law. Thisis the meaning of the phrase “as in accordance with the Treaties are without further enactment to be givenlegal effect or used in the United Kingdom” in Section 2(1) of that Act. This is to be read with Section 3of the Act which makes the substance of EU law (including the nature of direct applicability and directeffect) a matter to be determined in accordance with EU law and its procedures, of which our courts arerequired to take judicial notice.

(3) As a matter of British constitutional law, it would not be open to Parliament to create a new source oflaw in the United Kingdom (which is the nature of the direct applicability and direct effect of EU law)by a mere Act of Parliament, except to the extent that its doing so is recognised by the courts as havingachieved that effect. The power and the limits of an Act of Parliament are a combined product of basicinherited constitutional principles and the determinations of the courts. It so happens that the British courtsultimately chose to accept EU law as a new source of law, beyond statute and common law, (Factortame,inter al.), giving effect to their understanding of the factors set out in (1) and (2) above. They might wellhave decided otherwise.

2. The legal status of Clause 18 is obscure. It has no evident legislative effect. It is essentially declaratoryin character. It cannot itself finally determine the constitutional problem of the legal basis of direct applicabilityand direct effect. That matter can only be finally determined by the Supreme Court and the European Court.

3. Being merely a provision in an Act of Parliament, Section 18 would be as vulnerable to amendment orrepeal as any other provision in an Act of Parliament. The provisions of the 1972 Act are less vulnerable,given the complex constitutional framework set out above. It is no longer clear that a mere provision in an Actof Parliament could undo the direct applicability and direct effect of EU law. That question would also be amatter for the Supreme Court and the European Court finally to determine.

Long Title

4. The phrase “to make provision about the means by which directly applicable or directly effective EuropeanUnion law has effect in the United Kingdom” is inappropriate and should be redrafted as “to make provisionconcerning the direct applicability and direct effect of European Union law in the United Kingdom”.

5. The whole point of direct applicability and direct effect (affirmed in countless decisions of the EuropeanCourt and the British courts) is that there must be no “means” of implementing them. They take effect as suchand automatically within the United Kingdom.

6. This suggests that the phrase in question is intended to refer to Clause 18. But (a) Clause 18 does not“make provision” about any such thing; and (b) it does not have any legal effect whatsoever on the status ofEU law as a source of law in the UK.

7. The Supreme Court or the European Court might be interested to read the text of a future Section 18. Butthey might also ignore it entirely—or they might give it their own interpretation which, one may hope, wouldbe in line with the analysis set out above in relation to Clause 18.

8. It follows that the phrase in question in the Long Title is misleading. Although a Long Title has nolegislative effect, it should not contain anything that is misleading about the legislation that it summarises.

Clause 8

9. We should have objected to Article 235 of the EC Treaty (now, more or less, Article 352 of the TFEU)at the time of UK accession. Much has been done over the years by the EU institutions and by the EuropeanCourt to mitigate its awfulness. The provisions of Clause 8 may be very difficult to apply in practice—and couldlead to much litigation in the UK and in the European Court. But they certainly address a notorious problem.

10. The problem of Article 235/352 is that it makes explicit provision—and unconscionably generousprovision in favour of the Council—in relation to one of the most subtle and difficult of constitutional matters—the question of implied powers—what are the powers of an organ of the constitution which are not explicitlyconferred, but which prove to be incidentally necessary, from time to time, in the implementation of explicitpowers?

11. Every constitution must deal with this question. The best solution has been the American (and also, ineffect, the British) solution.



“Let the end be legitimate, let it lie within the scope of the constitution, and all means which are appropriate,which are plainly adapted to that end, which are not prohibited, but which consist with the letter and spirit of theconstitution, are constitutional.”.-. Chief Justice Marshall, McCulloch v. Maryland (US Supreme Court, 1819).

12. Through the assertion of this common-law constitutional principle, the US Supreme Court created abroad framework for countless subsequent, often highly controversial, decisions about implied powers. Theposition has been essentially the same in the United Kingdom, albeit in the absence of a written constitutionaldocument, through the medium of coundess cases decided, as necessary, by the courts.

General

13. The Bill has a whiff of revolution about it. It is a Boston Tea Party gesture against creeping integration.As such, one might say, it is twenty years too late.

With an elegance of drafting reminiscent of the 1972 Act, it seems to echo Luther’s “here I stand”. Is theBill compatible with our international treaty obligations and EU law?

14. It is a principle of EU law that member states must make their own constitutional and administrativearrangements for participation in the EU institutions, subject always to their acting in conformity with EU law.The UK led the way in involving Parliament in the scrutiny of proposed EU legislation—and that precedenthas been followed in many other member states. The reports of the UK parliamentary scrutiny committeeshave been recognised as major contributions to the general EU pre-legislative process.

15. All the leading member states have struggled with the problem of how to involve their parliaments inthe functioning of the EU system. The German Federal Constitutional Court has insisted, on several occasions,that no development in the EU must be allowed to undermine the fundamental place of the German parliament,as the immediate voice of the people, in the overall constitutional structure of the Federal Republic.

16. So far as I know, no other member state has anything remotely approaching the degree of parliamentaryinvolvement which the Bill would create, albeit only in relation to a particular kind of EU law provision—those provisions that can, piecemeal, increase the legal powers of the Union and its institutions.

17. Needless to say, if this approach were to be extended to other kinds of EU provisions, or if other memberstates, in any great number, adopted the same kind of regime, the EU law-making process would grind to ahalt. Even within the United Kingdom, one might expect that the new procedures would give rise to muchextra work—and some litigation.

18. In the time available, I have not been able to check every one of the very many Treaty provisions whichare to be subjected to these new procedures. So far as I can tell, they are all provisions in which the UnitedKingdom, represented by ministers in the Council, has the power to agree or not to agree to the adoption of aproposed legal act. The Bill would, therefore, not increase or decrease the UK’s powers under EU law inrelation to such legal acts. If this is so, then the Bill is covered by the principle noted above—that it is foreach member state to determine its domestic procedures for participating in EU institutions.

19. If a personal comment may be permitted, one may hope that this legislation will not divert attentionfrom the great constitutional challenges posed by the present deplorable state of functioning of the EU—

(a) the absence of any European democratic politics, given the failure of the European Parliament to giverise to a Europe-wide democratic forum integrated into national politics;

(b) the marginalisation of national parliaments in relation to policy-making and law-making;

(c) the spectre of taxation without representation, given that the EU budget is determined obscurely andremotely from the taxpayers who pay for it; and

(d) most generally, the absence of any kind of constitutional unity embracing the EU and the memberstates. On the contrary, through a kind of acquis anticommunautaire of recent years, the total systemhas become more grossly anomalous than ever—with the governments of member states seeingparticipation in the Council as diplomacy by other means, pursuing narrow national interests, and withthe vast statist leviathan of the institutional EU apparently beyond redemption, and terminallyincapable of projecting European power globally—a fundamentally disintegrated over-integration—amonstrous constitutional paradox.

20. It may be that something more than a whiff of revolution is overdue.

16 November 2010



Written evidence from Trevor Hartley, Professor of Law Emeritus, London School of Economics

THE EUROPEAN UNION AND BRITISH SOVEREIGNTY

Summary

This memorandum deals with the effect of the EU Treaties and EU legislation on the sovereignty of theBritish Parliament. It concludes that parliamentary sovereignty (supremacy) is unaffected by them.

1. I am a Professor of Law Emeritus at the London School of Economics, where I have taught courses onEuropean Union Law for many years. I have published extensively in the field.1

2. I start with two self-evident propositions. First, the United Kingdom constitution owes nothing toEuropean-Union law or to international law: it is the product of British history. Secondly, European Union lawis either contained in the Union treaties or is based on them; and those treaties derive their validity frominternational law.

3. Since the European-Union treaties are treaties and nothing more, their effect in the United Kingdom legalsystem can be no greater than that accorded to treaties under the United Kingdom constitution.2

4. The effect of treaties within the United Kingdom legal system has been considered by the courts on anumber of occasions. As is well known, a treaty does not as such have the force of law in the UnitedKingdom.3 In order to give it such effect, Parliament must pass legislation. The same is true with regard tolegislation adopted by an international or supranational organization (such as the European Union) of whichthe United Kingdom is a member. Without such legislation, a treaty or such legislation will not constitute lawin the United Kingdom.4

5. In view of this, when the United Kingdom first joined the European Union (then the EuropeanCommunities), Parliament passed the European Communities Act 1972, section 2 of which gave legal effectin the United Kingdom to such provisions of the EU Treaties and EU legislation as were required by EU lawto be applied in the Member States. When new treaties were agreed, new legislation had to be adopted.

6. As far as the United Kingdom is concerned, the effect of the entire EU legal system depends on a seriesof Acts of Parliament. Without them, EU law would have no legal effect in the United Kingdom. The EuropeanCourt of Justice may take a different view, but, in the British courts, the legal effect of EU law in the UnitedKingdom depends on United Kingdom law and not on EU law.

7. For this reason, United Kingdom law determines the nature of the relationship between United Kingdomlaw and European Union law: it decides which will prevail in the event of a conflict and whether and how thatrelationship can be changed.

8. Section2(1) of the European Communities Act 1972 provides for EU law to have effect in the UnitedKingdom legal system, and section 2(4) purports to entrench the position of EU law by providing that futureActs of Parliament are to have effect subject to Union law. It states that “any enactment passed or to bepassed … shall be construed and have effect subject to the foregoing provisions of this section.” The “foregoingprovisions” of course include section 2(1).

9. However, it is a well-known provision of the United Kingdom constitution that Parliament isconstitutionally unable to limit its future powers: any such limitation is invalid and ineffective.

10. For this reason, section 2(4) could not deprive Parliament of the power to legislate contrary to EU law.Section 2(4) should, therefore, be read as laying down no more than a rule of interpretation—though it shouldbe regarded as a strong rule of interpretation—that, unless a contrary intention is expressly stated, the courtsare to assume that future Acts of Parliament are intended to be subject to directly effective EU law. Where acontrary intention is expressly stated, however, the Act of Parliament will prevail.

11. This point was made by Lord Denning MR as long ago as 1979 when he said:5

If the time should come when our Parliament deliberately passes an Act with the intention ofrepudiating the Treaty or any provision in it or intentionally of acting inconsistently with it and says

1 Publications relevant to the present subject include: T. C. Hartley, The Foundations of European Union Law (Oxford UniversityPress, Oxford, 7th Edition, 2010); Trevor C. Hartley, European Union Law in a Global Context (Cambridge University Press,Cambridge, 2004); Trevor C. Hartley, Constitutional Problems of the European Union (Hart Publishing, Oxford and Portland,Oregon, 1999); Hartley, “The Constitutional Foundations of the European Union” (2001) 117 Law Quarterly Review 225;Hartley, “International Law and the Law of the European Union—A Reassessment” [2001] British Year Book of InternationalLaw 1.

2 In the past it was sometimes suggested that the EU Treaties had become “constitutionalized” and were thus something morethan treaties. Not much is heard of this theory today. For a criticism of it, see Hartley, “The Constitutional Foundations of theEuropean Union” (2001) 117 Law Quarterly Review 225 at pp. 226–233.

3 The citation of authority for this proposition is hardly necessary, but if it is needed it can be found in Attorney General forCanada v. Attorney General for Ontario [1937] AC 326 (PC).

4 At most, it will have effect as an aid to the interpretation of existing United Kingdom legislation. See Salomon v. Commissionersof Customs and Excise [1967] 2 QB 116 (CA).

5 Macarthys Ltd v. Smith [1979] 3 All ER 325 at 329. See also per Lawton LJ at 334. In subsequent proceedings in the samecase, Lord Denning made the point even more forcefully: see [1981] 1 All ER 111 at 120. For an earlier statement by LordDenning, see Shields v. E. Coomes (Holdings) Ltd [1979] 1 All ER 456 at 461–2, [1978] 1 WLR 1408 at 1414, CA.



so in express terms then I should have thought that it would be the duty of our courts to follow thestatute 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.

12. So, unless Parliament expresses a contrary intention, directly effective EU law prevails over UnitedKingdom law. But if Parliament does express such an intention, and does so clearly, then the Act of Parliamentwill prevail. Moreover, Parliament could always repeal the European Communities Act, in which case EU lawwould have no direct effect at all in the United Kingdom.

13. The leading case today is Thoburn v. Sunderland City Council,6 in which Lord Justice Laws said:

[T]here is nothing in the [European Communities Act] which allows the [European Court], or anyother institutions of the EU, to touch or qualify the conditions of Parliament’s legislative supremacyin the United Kingdom. Not because the legislature chose not to allow it; because by our law it couldnot allow it. That being so, the legislative and judicial institutions of the EU cannot intrude uponthose conditions. The British Parliament has not the authority to authorise any such thing. Beingsovereign, it cannot abandon its sovereignty. Accordingly there are no circumstances in which thejurisprudence of the [European Court] can elevate Community law to a status within the corpus ofEnglish domestic law to which it could not aspire by any route of English law itself. This is, ofcourse, the traditional doctrine of sovereignty. If it is to be modified, it certainly cannot be done bythe incorporation of external texts. The conditions of Parliament’s legislative supremacy in the UnitedKingdom necessarily remain in the United Kingdom’s hands.

14. He went on to make clear that the relationship between the United Kingdom and the European Uniondepends on United Kingdom law, not European Union law.

15. For this reason, clause 18 of the European Union Bill, which states that it is only by reason of an Actof Parliament that EU law applies in the United Kingdom, is entirely in accord with the constitutional positionin the United Kingdom.

16. The position is similar in other Member States. In Germany, the Federal Constitutional Court(Bundesverfassungsgericht) has made clear on a number of occasions that the German Constitution remainssupreme law in Germany; European Union law applies in Germany only to the extent permitted by theConstitution.7 In 2005, the Federal Constitutional Court held that the German legislation giving effect to theEU third-pillar framework decision on the European Arrest Warrant8 was invalid because it was contrary tothe constitutional provision forbidding the extradition of German citizens.9 The Danish Supreme Court10

and the Polish Constitutional Court have given similar rulings.11 I believe that the position is the same in allthe Member States. The fundamental principle—the starting point of legal analysis—is the national constitution.EU law applies only by reason of, and to the extent permitted by, the national constitution. The United Kingdomis in no way out of line on this question.

17. Of course, the European Court takes a different view. There are thus two ways of looking at the question:that of the European Court and that of the Member-State courts. The former reflects the position in Union lawand would prevail at the Union level; the latter reflects the position in Member-State law and would prevail atthe national level.

18. Declaration 17 attached to the Treaty of Lisbon provides:

The Conference recalls that, in accordance with the well settled case law of the Court of Justice of theEuropean Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacyover the law of the Member States, under the conditions laid down by the said case law.

The precise status of such declarations is controversial, but in any event they cannot have greater effectthan a provision in the treaty to which they are attached. As a treaty provision, it would be subject to thelimitations set out in paragraph 4, above: it could not affect the constitutional position under UnitedKingdom law. The sovereignty of the United Kingdom is not limited by it. All the Declaration does—asthe Declaration itself recognizes—is to restate the position under European Union law, as laid down bythe European Court.

19. The result is that the position under Union law differs from the position under national law. Under UnitedKingdom law, the powers of the British Parliament remain undiminished. Provided it makes its intention clear,Parliament can legislate contrary to Union law. It can restrict or abolish the power of the European Court to6 [2002] EWHC 195 Admin; [2002] 3 WLR 247 (Divisional Court).7 Bundesverfassungsgericht, decision of 12 October 1993, reported in English as Brunner v. European Union Treaty [1994] 1

Common Market Law Reports 57. See in particular, paragraph 55 of the CMLR text. For the German text, see 2 BvR 2134/92and 2 BvR 2159/92. The background and significance of the case are explained in Foster, “The German Constitution and ECMembership” [1994] Public Law 392.

8 Council Framework Decision 2002/584/JHA, OJ 2002, L190/1.9 Decision of 18 July 2005, 2 BvR 2236/04: see http://www.bundesverfassungsgericht.de/en/decisions/rs20050718_

2bvr223604en.html (English translation). For a comment, see Hinarejos Parga, (2006) 43 CMLRev. 583.10 Carlsen v. Rasmussen, Danish Supreme Court, judgment of 6 April 1998, Case I 361/1997, [1999] 3 CMLR 854 (English

translation).11 Case K 18/04. English translation and summary: http://www.trybunal.gov.pl/eng/summaries/wstep_gb.htm. See especially at

paragraphs 6–16 of the English-language summary.



give judgments that are legally binding in the United Kingdom. It can abolish, in whole or in part, the powerof United Kingdom courts to refer questions to the European Court. If the Act was appropriately drafted, therewould be no way in which its effectiveness could be challenged in the courts of the United Kingdom.

20. At the EU level, the position would be different. Proceedings could be brought against the UnitedKingdom before the European Court and fines imposed, though it is hard to see how the United Kingdom couldbe forced to pay these fines if it did not want to. The final outcome would depend on political considerations.12

November 2010

Written evidence from Michael Dougan, Dean of the Liverpool Law School and Professor of EuropeanLaw, University of Liverpool

PART 3 OF THE EUROPEAN UNION BILL (PARLIAMENTARY SOVEREIGNTY CLAUSE)

1. The Explanatory Notes observe (at para 106) that Clause 18 has been included in the EU Bill “to addressconcerns that the doctrine of Parliamentary sovereignty may in the future be eroded by decisions of the courts”.The Explanatory Notes continue to state (also at para 106) that Clause 18 “will provide clear authority whichcan be relied upon to counter arguments that EU law constitutes a new higher autonomous legal order… whichhas become an integral part of the UK’s legal system independent of statute”.

2. It should be observed from the outset that the “concerns” referred to in para 106, so far as concerns thedomestic status of EU law, find no objective basis in UK constitutional law and no real support withinmainstream scholarly opinion. In fact, the argument that EU law could somehow oust Parliamentary sovereigntyas the cornerstone of the UK constitutional order—particularly when expressed in terms of a slow-burningjudge-led plan to recognise the EU as a self-authenticating entity whose authority is substituted for that of theUK (or any other Member State)—is essentially political in nature. It is associated, in particular, with aEurosceptic rhetoric lacking any persuasive evidential foundation. Indeed, the “arguments” referred to in para106 of the Explanatory Notes are heard, most commonly, from Eurosceptic politicians and popularcommentators. They certainly do not emanate from the EU itself: the amendments introduced by the Treaty ofLisbon have clarified beyond any credible doubt that the EU is an organisation of purely derived authority andstrictly limited competences. Nor can those “arguments” be attributed to the UK judiciary, or even understoodas a vision of the UK constitutional system to which the UK judges have shown themselves in any degreesympathetic.

3. There is a strong consensus among legal experts that EU law was and remains incorporated into UK lawby virtue of an Act of Parliament. Doctrines such as the duty of consistent interpretation (the obligation ofnational courts to interpret national law, as far as possible, in conformity with EU legislation), the principle ofdirect effect (the capacity of a provision of EU law to produce cognisable legal effects within the nationalsystem) and the principle of supremacy (the preference given to EU law where national law is incompatiblewith directly effective EU provisions) all apply within the UK thanks to the Parliamentary mandate created bythe European Communities Act 1972, as interpreted by the UK courts in landmark rulings such as R v Secretaryof State for Transport, ex parte Factortame (No 2) [1990] 3 WLR 818 and R v Secretary of State forEmployment, ex parte Equal Opportunities Commission [1995] 1 AC 1.

4. On the basis of that mandate, the UK courts will interpret UK legislation in conformity with our EUobligations and will disapply UK legislation if it conflicts with directly effective EU law. The requirement thatdirective effective EU law enjoys supremacy in the event of an irreconcilable conflict with national law is ahighly significant practical reality within the UK—but it does not take effect in some autonomous manner,directly under the authority of the European Union or the European Court of Justice, independently of ordespite the will of Parliament itself. Its fundamental constitutional basis remains the principle ofParliamentary sovereignty.

5. For that reason, as observed by Lord Denning in Macarthys Ltd v Smith [1979] 3 All ER 325, Parliamentremains free clearly and explicitly to derogate from EU law (however unlikely that is to happen in reality,given the high political costs such a course of action would inevitably entail). Parliament also remains entitledultimately to repeal the European Communities Act 1972 altogether (as would happen in the event of the UK’svoluntary withdrawal from the EU). Short of such steps, the UK courts will assume that Parliament did notintend to repudiate the UK’s obligations under EU law; and will thus pursue the appropriate interpretation or,if that is not possible, the necessary disapplication of the relevant legislation. As one would expect, the UKcourts have thus crafted a careful balance between the integrity of the UK constitutional system (on the onehand) and the demands of EU membership (on the other hand) which is entirely appropriate for our maturelegal and political order.

6. It is true that, within the space which lies between faithful implementation of the European CommunitiesAct 1972 (on the one hand) and the theoretical possibility of a future Parliamentary derogation from EU law12 For the way in which political considerations can override the law in the European Union, one only has to look at the reaction

of the Union to France’s deportation of Roma immigrants from other Member States. This was almost certainly a violation ofEU law, which permits such deportation only on the basis of the personal conduct of the individual concerned. Initially, the EUJustice Commissioner, Ms Reding, took a strong line and threatened France with legal proceedings in the European Court.However, she had to back down when it appeared that she did not enjoy political support among her fellow Commissioners.



(on the other hand), some judges have explored the implications of rulings such as Factortame, when viewedin their broader constitutional context alongside other major domestic developments (such as enactment of theHuman Rights Act and of the Devolution Acts), for the common law understanding of Parliamentarysovereignty. Perhaps the most famous of those judicial reflections is the judgment of Laws LJ in Thoburn vSunderland City Council [2002] 4 All ER 156, in which he suggested a distinction between “ordinary” statutesand a special class of “constitutional statutes”, with the latter being exempt from the usual doctrine of impliedrepeal, such that the relevant measures can only be abrogated by clear and express Parliamentary language.

7. Such an analysis—even if one accepted it to reflect the current state of the common law—is neitheruniquely concerned with the status of EU law within the UK nor at all incompatible with the doctrine ofParliamentary sovereignty per se. Indeed, as Laws LJ stated (at para 69 of his judgment in Thoburn), “[t]hefundamental legal basis of the United Kingdom’s relationship with the EU rests with the domestic, not theEuropean, legal powers”. If the common law were in the future to evolve in a direction that recognised theexistence of certain limits to the principle of Parliamentary sovereignty as a matter of UK constitutional law,such restrictions are far more likely to emerge in fields such as the fundamental rights and liberties of thecitizen, than as regards the status of EU law within the UK legal order (consider, e.g. the House of Lords’ruling in Jackson v Attorney General [2005] UKHL 56). Indeed, insofar as the UK courts have toyed with theidea that the common law may itself impose certain inherent constraints upon Parliamentary sovereignty in thecontext of EU law, it has been to leave open the entirely hypothetical possibility of recognising limits to thedegree that Parliament has authorised, or may in the future authorise, the supremacy of EU law within the UK(consider, e.g. Thoburn v Sunderland City Council [2002] 4 All ER 156; Gouriet v Secretary of State forForeign and Commonwealth Affairs [2003] EWCA Civ 384).

8. In short: there are no reasonable grounds for arguing that Parliamentary sovereignty as the conceptualfoundation stone of the UK constitution is threatened by the EU or by the approach of UK judges towards thestatus of EU law within the national legal system. Clause 18 should therefore be seen as a mere codificationof the constitutional status quo. It is a legally unnecessary provision, but one which does no constitutionalharm, and could indeed serve a potentially valuable political purpose, i.e. insofar as it helps the Governmentand other mainstream political opinion to counter rhetorical (Eurosceptic) claims that EU law mightsurreptitiously oust UK sovereignty. For the same reasons, it is difficult to see how / why Clause 18 could /should have any appreciable substantive effect upon the current practice of the UK courts towards theinterpretation and application of EU law within the national legal system.

9. The terms of reference for the present European Union Bill Inquiry also raise the question of consistencybetween Clause 18 (on the one hand) and Declaration 17 annexed to the Final Act of the IGC which adoptedthe Treaty of Lisbon (on the other hand). The latter Declaration essentially recalls that, in accordance with thecaselaw of the European Court of Justice, EU law has primacy over national law under the conditions laiddown by that caselaw.

10. It should be stressed that the issue of consistency between Clause 18 and Declaration 17 should not beconsidered a relevant concern for the UK or indeed for the EU.

11. It is well known that the ECJ has developed (and is perfectly entitled to hold) its own perspective on theprinciple of supremacy. Under that perspective, the principle of supremacy is an unconditional one, subjectonly to the limits recognised by EU law itself (for example, for the safeguarding of legal certainty in favourof individuals whose interests might be unfairly prejudiced by the enforcement of directly effective EUprovisions).

12. That perspective is not shared by the vast majority of Member States, in particular, under thejurisprudence of their national supreme courts. For the latter, the principle of supremacy takes effect only byvirtue of national law and is therefore subject to whatever limits are determined under such national law.

13. Those limits differ from Member State to Member State. For example, the German Federal ConstitutionalCourt recognises the supremacy of EU law but insists that the latter remains subject to various constitutionalsafeguards based on ensuring (first) that EU law offers a level of fundamental rights protection equivalent tothat guaranteed under the German Basic Law; (secondly) that the EU does not act ultra vires the Treaties, byperpetrating an obvious violation of the limits of its attributed powers, so as to bring about a structural shift inthe balance of competence between the EU and its Member States; and (thirdly) that EU action does notendanger the fundamental constitutional identity of Germany, by compromising the capacity of thedemocratically legitimate organs of state to shape the circumstances of life for their citizens in various policyfields.

14. Within the UK, the comparable / relevant limits imposed upon the principle of supremacy as a matter ofnational law are those which derive essentially from the doctrine of Parliamentary sovereignty, i.e. thepossibility that Parliament may clearly and expressly derogate from its EU obligations and ultimately repealthe European Communities Act 1972. Despite the dicta in cases such as Thoburn and Gouriet, referred to inpara 7 above, there is as yet no clear authority to affirm or illustrate the existence of additional common lawqualifications to the principle of supremacy within the UK legal order (akin to the approach of the GermanFederal Constitutional Court).



15. In short: Declaration 17 reflects the position of the ECJ within its proper sphere of competence, i.e. thederived legal order of the EU itself. Clause 18 reflects the position of the UK within its own sphere ofcompetence, i.e. the legal order of the UK as a sovereign state under international law. The pertinent questionis not really one of consistency between Declaration 17 and Clause 18—though it should be observed, for theavoidance of doubt, that the latter provision of itself contains no contradiction of the ECJ’s caselaw such aswould place the UK in breach of its obligations under the EU Treaties. A better understanding of the positionwould be to think in terms of an ongoing interaction between two distinct legal orders—EU and UK—whosecreative tensions and exchanges are inherent in the very nature of the EU as a complex legal and political entity.

16. I should like to add a brief and rather obvious concluding observation. There is a certain irony in thedrafting of a Bill which purports to enshrine the principle of Parliamentary sovereignty so as to safeguard itfrom the entirely fictitious prospect of an attack from either the EU itself or the UK’s own judges on the basisof EU law; while simultaneously launching a direct challenge to that very same principle of Parliamentarysovereignty as a matter of internal UK constitutional law, i.e. by proposing a system of “referendum locks”which purport to limit the competence of future Parliaments to enact legislation relating to specified EU mattersin various circumstances. If there is a real concern about the doctrine of Parliamentary sovereignty that needsto be addressed during the passage of this Bill, it surely consists in an attempt by the Government to persuadethe current Parliament to bind its successors in a manner which runs counter to accepted understandings of ourconstitutional order.

November 2010

Written Evidence from Professor Paul Craig, St John’s College, University of Oxford

Part 3, Status of EU law, the Parliamentary Sovereignty Clause

The committee poses a number of questions concerning the impact of Clause 18 of the Bill. The answers tothese questions depend, however, on more precise consideration of the purpose and wording of Clause 18. Thisis important because the Explanatory Memorandum, EM, and the wording of Clause 18, raise three issues thatare related but distinct.

(1) Issue 1: An Act of Parliament is a necessary condition for the UK’s entry into the EU and is therefore anecessary pre-condition for the application of any EU law in the UK. The legal premise is that in a dualistcountry such as the UK there must be an Act of Parliament that adopts or transforms the EU Treaty into UKlaw. Viewed from this perspective there is nothing novel about Clause 18 insofar as it stipulates that “it is onlyby virtue of an Act of Parliament that directly applicable or directly effective EU law … falls to be recognisedand available in law in the United Kingdom”. The 1972 Act, and in particular s 2(1), is the gateway in thepreceding sense for EU law becoming part of UK law. There is in general no “legal fight” with the EU vis-à-vis this issue. The application of EU law within a national legal order is predicated on that legal order beingpart of the EU, as determined by the constitutional requirements of that state. Clause 18 could nonethelesspotentially be relevant in two unlikely scenarios.

(a) The UK expressly repeals the 1972 ECA, but has not yet exited from the EU as it is allowed to dounder the Lisbon Treaty, Article 50 TEU. On this scenario there would be no Act of Parliamentthrough which EU law fell to be recognized in the UK. However until the UK left the EU it might beargued that it remained bound by EU law as an international Treaty obligation. It might further becontended from the perspective of the EU/ECJ that EU law could continue to apply in the UK as anautonomous legal order even in the absence of a domestic statute. Clause 18 if enacted would operateto block or at the very least impede this line of reasoning within the UK courts.

(b) The alternative scenario is one in which the ECA 1972 remains, but a UK statute expressly derogatesfrom a provision of EU law in a particular instance, with appropriate statutory words expresslyexcluding application of the principles in the ECA 1972. There has been no such case thus far. If itwere to arise it might be argued in the light of Clause 18 that if an Act of Parliament expresslyderogated from EU law and expressly excluded application of the ECA 1972, there would to thatextent be no Act of Parliament by virtue of which EU law was recognized and available in the relevantarea in the UK. Clause 18 could then be used to counter any argument that the relevant provision ofEU law could apply within the UK because EU law constituted an autonomous legal order. Needlessto say such an Act of Parliament would constitute breach of EU law. It would be for the UK courtsto determine whether such an Act of Parliament was compatible with the UK’s continued membershipof the EU. The Supreme Court might decide that the UK statute could be given effect pursuant to thesovereignty of Parliament, plus Clause 18. It might alternatively decide that such a statute could notbe made while the UK remained within the EU. My personal view is that in the absence of some veryserious and well-founded concern about the impact of EU law on national constitutional precepts/fundamental rights, such a statute should not be enacted for the reasons given in 4a below, and thatsuch a step should only be contemplated after according the EU courts the opportunity to take actionvia a preliminary ruling.

(2) Issue 2: It seems, however, from the EM, especially paras 104–106, 109, that the framers of the Billmight have intended something more than this. Clause 18 could be read to mean that an Act of Parliament is



required before any particular EU law takes effect in the UK, notwithstanding the existence of the 1972 Act,and notwithstanding the fact that the particular EU law is directly applicable and/or directly effective. Thewording of EM para 104 and 105 seems premised at least in part on this assumption, insofar as both parasassume that the validity of EU law within the UK might be dependent on the need for some UK statute overand beyond, or independent of, the 1972 Act. If this is the intent behind Clause 18 it is problematic from theperspective of UK law and EU law.

(a) UK perspective: UK law has never demanded the existence of a UK statute or statutory instrument toincorporate each individual act of EU legislation within UK law.

(i) The ECA s 2(1) is expressly framed thus: “all such rights, powers, liabilities, obligations andrestrictions from time to time created or arising by or under the Treaties, and all such remediesand procedures from time to time provided for by or under the Treaties, as in accordance with theTreaties are without further enactment to be given legal effect or used in the United Kingdom shallbe recognised and available in law, and be enforced, allowed and followed accordingly”. Moreoverthe ECA s 3(1) specifies that the interpretation of the Treaties and interpretation/validity of EUacts are issues of law that must either be referred to the ECJ under what is now Article 267 TFEU,or be decided by the UK courts in the light of the ECJ’s jurisprudence.

(ii) To be sure directives require implementation and this will normally be through UK statute ordelegated legislation, but this is of course consonant with and demanded by the very nature ofdirectives under EU law. The UK has not constitutionally required separate national legislation asa pre-condition for the legal validity of each directly applicable EU regulation within UK law, norhas it required UK legislation as a pre-condition for the enforcement of directly effective rights inUK law. There must, to be sure, be an Act of Parliament that authorizes the application of EU lawin national law, as noted in point 1 above, and this is provided for by ECA 1972, s 2(1). Theremay moreover be national legislation that has to be altered in the light of a directly applicableregulation or directly effective EU norm, or in order to implement a directive, hence the powercontained in s 2(2) ECA. That is quite different from saying that each such EU provision must berecognized in a separate UK statute or statutory instrument before it has legal effect in the UK.

(b) EU perspective: if Clause 18 were to be accorded the meaning being considered here it would placethe UK in persistent and systematic breach of EU law. It is clear from EU law, and has been for thelast fifty years, that regulations once made by the EU are directly applicable in all national legal orderswithout the need for separate transformation or adoption into national law. The rationale is simple. Ifeach regulation had to be separately incorporated into each legal order the EU would not be able tofunction, since there would always be imperfect national implementation, and hence unequalapplication of EU law in the relevant area, thereby undermining the very idea of a level playing field.It is equally clear that directly effective Treaty articles, regulations, directives and decisions are notdependent for their effect on acceptance into the national legal orders via separate statute or the like.

(3) Issue 3: It is clear from the EM that a major concern driving Clause 18 concerned Parliamentarysovereignty. The nub of the argument is contained in para 106 of the EM, which can be paraphrased thus: thereis concern that the doctrine of Parliamentary sovereignty might be eroded by the decisions of the courts; byplacing on a statutory footing the common law principle that EU law takes effect in the UK by virtue of anAct of Parliament, this will then provide clear authority to counter arguments that EU law constitutes a newhigher autonomous legal order derived from the EU Treaties or international law and principles which hasbecome an integral part of the UK’s legal system independent of statute. The EM also states, para 109, thatClause 18 is not intended to alter the relationship between EU and national law, and is not intended to affectthe primacy of EU law. The following issues should be disaggregated for the purposes of analytical clarity.

(a) It is important to be clear at the outset in what sense Clause 18 is to be regarded as a SovereigntyClause.

(i) It can properly be so regarded insofar as it embodies in statutory form the common law conceptof dualism. It states in terms that EU law falls to be recognized and available in the UK by virtueof an Act of Parliament. This supports the sovereignty of Parliament by making clear that executiveaffirmation of a Treaty will not have domestic legal effect without Parliamentary ratification/approval in a statute. This is reflected in the heading of Clause 18, which is: “Status of EU lawdependent on continuing statutory basis”.

(ii) Clause 18 is not a sovereignty clause in that it tells us nothing as such about the relation betweenEU law and national law in the event of a clash between the two. It does not address sovereignty asprimacy. Indeed EM para 109 expressly states that nothing in Clause 109 is intended to affect this.

(b) The next step is to consider the purpose of Clause 18 in the light of the two preceding senses ofsovereignty.

(i) There was nothing in the prior case law that undermined sovereignty in the sense of dualism,3(a)(i). The UK cases concerning EU law and national law were predicated on dualism. The caselaw of the EU courts did not attack the idea that the relationship between UK law and EU couldbe premised on dualism, insofar as this connoted the way in which the EU Treaty initially becamepart of national law. The principle of directly applicable EU law does not offend sovereignty inthe sense of dualism. The UK, through the ECA 1972 expressly agreed to the Treaties, including



the idea that regulations were directly applicable. Thus insofar as rules of EU law can have effectwithout the foundation of a particular statute this is because the EU Treaty and case law thereunder affirmed that this was so, and the UK agreed to this regime when joining the EEC via theECA 1972 ss two and three. The affirmation of sovereignty as dualism in Clause 18 does no harm.It would however only be relevant in the unlikely scenarios set out in point one above; or on theassumption that Clause 18 were to be given the meaning in point two, which is very problematicfor the reasons given above.

(ii) There has to the contrary been much case law concerning sovereignty in the sense of therelationship between EU law and national law in the event of a clash, 3(a)(ii). The EU courts havealways taken the view that all EU law has primacy over all national law. This has not beengenerally accepted by national courts of Member States, which have, for example, resisted theidea that EU law takes precedence over the national constitution and/or fundamental rights. TheUK courts in Factortame and the EOC case accepted that EU substantive law can have primacyover national law in the event of a clash. Thoburn is authority for the proposition that therelationship between EU law and national law is to be decided by UK courts in accord with ourconstitutional precepts, including the sovereignty of Parliament. The answer is not to be regardedas one dictated by ECJ jurisprudence. The relevant point for present purposes is that Clause 18does not in terms address this second sense of sovereignty. It tells us that EU law takes affect inthe UK by virtue of an Act of Parliament (sovereignty as dualism); it says nothing as to whatshould happen when there is a clash between EU law and national law (sovereignty as primacy),which will continue to be determined by the prior case law. The same point can be put in adifferent way: the issues of how EU law enters national law, and its status vis-à-vis other normsof national law are distinct. Thus even if, by way of contrast to the UK, a Member State conceivesof the relationship between treaties and national law in monistic terms, such that a domestic statuteis not required for a Treaty to take effect within the national legal order, this does not in itselfdetermine the relevant hierarchy between national law and Treaty law in the event of a clashbetween the two. The answer may be expressly determined by a provision of the nationalconstitution, or it may be decided by the courts where the national constitution gives no explicitanswer. Insofar as member States have accorded primacy to EU law they have done so for reasonsconnected with their own legal order and not because of the communautaire reasoning of the ECJ.

(4) The committee’s specific questions can now be answered in the light of the preceding analysis. The fearof erosion of sovereignty by the courts: the fundamental point in this respect was recognized by Lord Bridgein Factortame. Membership of the EU brings benefits and burdens. If a Member State could derogate from EUlaw in an area where the EU undoubtedly had competence, simply because the Member State disliked theoutcome, this would entail inequality vis-a vis the other Member States, the denial of a level playing field, andthe collapse of the EU. EU membership thus entails a loss of sovereignty viewed in terms of the capacity forautonomous state action. But if a Member State does not wish to accept the burdens of membership it shouldnot be able to take the benefits. Lord Bridge was therefore correct to premise his famous dictum by noting thatinsofar as there has been a diminution of sovereignty flowing from EU membership this was not the result ofjudicial decisions, but was rather the consequence of the political decision to join.

(5) What additional protection if any is served by placing the principle of parliamentary sovereignty inrelation to EU law on statutory footing? The answer to this question is contained in points 1–3 above. It shouldmoreover be noted that when the EU Bill under consideration becomes a statute it would, in accord withtraditional precepts of sovereignty, be capable of being repealed or amended. It may well be that the EU Act2010–11 would be regarded as a constitutional statute in the manner articulated by Laws LJ in Thoburn, inwhich case it would have to be amended or repealed expressly, or by clear words that could not be given anyother meaning. This does not alter the point being made here, which is that insofar as Clause 18 reflectssovereignty as dualism, which is a common law precept, it could be expressly repealed/amended pursuant tothe constitutional precept of sovereignty that Parliament can do whatever it wishes, save that it cannot bindits successors.

(6) The impact if any of Clause 18 on the ECA 1972, and in particular ss 2(4) and 3(1).

(a) Clause 18 and the EU Bill as a whole are predicated on the continued existence of the ECA 1972.There is nothing in Clause 18 that directly undermines the 1972 Act. It would indeed be difficult toconvince a UK court, which would in the spirit of Thoburn require express repeal or amendment ofthe ECA 1972, to regard Clause 18 as having any such effect, given that Clause 18 refers uncriticallyto the language of ECA, s 2(1).

(b) The ECA s 2(4) is notoriously difficult to interpret if one attempts to give sense to every word. Thebrief answer for present purposes is that the strong interpretive obligation/priority clause embodied ins 2(4) is not generally undermined by Clause 18. The only way in which this might be so, short ofrepeal of the ECA or its express exclusion in a particular instance, is if Clause 18 were to be interpretedto require express statutory approval for each and every norm of EU law before it became applicablein the UK. The difficulties with this view were set out in point two above. The same conclusionfollows in relation to the ECA s 3(1): Clause 18 would not affect the substance of s 3(1) unless it wasread so as to mandate separate statutory authorization before each EU norm could become part of UKlaw. This would be inconsistent with EU law as propounded by the ECJ, and according to s 3(1) the



UK courts are to make their determinations on points of EU law in accord with the principles ofthe ECJ.

(7) The question as to whether Clause 18 applies to future Acts of Parliament as well as the past: the answerin principle must be affirmative. An Act of Parliament applies unless and until repealed. Thus whatever meaningis given to Clause 18 will apply to future Acts of Parliament unless there is something express to indicatethe contrary.

(8) The Committee asks “what (if any) is the likely effect of putting the principle of parliamentarysovereignty with respect to directly applicable or directly effective EU law on a statutory footing on UK judgesreviewing the acts of public authorities and/or national legislation for consistency with EU law? Paragraph 106of the explanatory notes says that this Clause “will provide clear authority which can be relied upon to counterarguments that EU law constitutes a new higher autonomous legal order derived from EU Treaties orinternational law and principles which has become an integral part of the UK’s legal system independent ofstatute”. The Committee asks in what circumstances and by whom such an argument might be relied on.

(a) The circumstances in which such an argument might be of relevance were set out in point 1, but suchscenarios are not likely to become a reality. The argument might also be relevant if Clause 18 wereto be interpreted in the sense articulated in point 2, but this interpretation is problematic for the reasonsgiven above.

(b) An argument for the application of EU law in the absence of a UK statute might be made by a litigantwho sought to rely on EU law in the national courts where the outcome for that litigant was preferableto that based on national law.

(9) The final question in this part asks whether Clause 18 is consistent with Declaration 17 of the LisbonTreaty and the ECJ’s case law on primacy.

(i) Clause 18 does not in terms address the primacy of EU law, as explained above in 3. Moreoverthe EM para 109 states expressly that Clause 18 is not intended to affect the primacy of EU lawinsofar as it has been recognized in UK law.

(ii) If however the UK were, for example, to derogate from EU law in the manner set out in 1b above,and to use Clause 18 in tandem with the derogating statute with the hope of preventing applicationof EU law in national courts, this would undoubtedly be regarded as a breach of EU law bythe ECJ.

Part 1, Restrictions on Treaties and Decisions relating to the EU

(10) What is the meaning of, and difference between, the terms “competence” and “power” as used in theBill? Are “competence “and “power” as used in the Bill terms that are already recognised under national law?

(a) It is acknowledged in the EM para 20 that “power” is not a term of art in the Lisbon Treaty in thesame way as is “competence”. The rationale given for use of the two terms in the Bill emerges mostclearly in the EM para 39: the term power is used to cover those instances where an EU decisionseeks to confer on an EU institution or body a new or extended power to require Member States toact in a specified way in accordance with the EU’s existing competence; or to confer on an EUinstitution or body a new or extended power to impose sanctions on Member States for their failureto act in a specified way already provided for by the Treaties. Such a development would not, saysEM para 39, in itself, “transfer competence (the ability for the EU to act in a given area) from theMember States to the EU—instead, such a proposal would allow an institution or body of the EU touse the competence conferred on it already by the Member States in a different way”. This is said tobe the rationale for the use of the word power in clause 4(1)(i) and (j).

(b) There are arguments that can be put both ways as to whether the differentiation between power andcompetence is necessary.

(i) The argument in favour of the distinction would be as follows. There is a meaningful distinctionto be drawn between the existence of competence, and the powers that can be exercised if suchcompetence exists. This dichotomy is familiar in, for example, national systems of administrativelaw and it can also be found in Article 263 TFEU. The separate treatment of competence andpower within the EU Bill facilitates moreover coverage of the situation in which there is anamendment to the Treaty enabling, for example, new sanctions to be imposed by the Commissionor ECJ. Such an amendment would not thereby broaden the heads of competence as delineated inArticle 2 TFEU, because these relate to the substantive areas in which the EU is able to act, anddo not touch the powers accorded to the institutions under the TEU and TFEU.

(ii) The argument against the differentiation between competence and power would be as follows. Thevery scope of competence possessed by the EU in any particular area will depend inter alia on themore particular powers that the EU is given within that area. An addition to those powers will inthat sense expand the scope of EU competence within that area. The EU Bill is premised ondistinguishing between a Treaty revision that extends competence, by for example, broadening thesubject matter remit of a Treaty article, and Treaty revision that extends “power” to imposesanctions. It is however unclear why the latter is not as much an extension of competence as



the former, more especially if the extension of power is integrally linked to a particular subjectmatter area.

(c) I do not feel strongly as between the preceding arguments. There is however a point of someimportance that flows from the dichotomy between competence and power that can be questioned.The significance condition in Clause 3(4) applies only to conferral of power under Article 4(1)(i) and(j), and then only in relation to conferral of power pursuant to the simplified revision procedure inArticle 48(6) TEU. The assumption is that such a conferral of power may be insignificant, but thatcreation/extension of competence in relation to the other matters listed in Clause 4 cannot. Thisassumption does not withstand examination. The extension of competence in relation to, for example,an area in which the EU has competence to support, coordinate or supplement Member State actionmight equally be insignificant for the UK, but a referendum would nonetheless be mandatory insuch cases.

(11) Are the conditions on which the Minister decides that a Treaty change or decision amounts to thetransfer/extension of an area of competence or power from the UK to the EU sufficiently clear?

(a) The general answer to this question is as follows. Clause 5(3) imposes an obligation on the Ministerto state whether in his opinion the Treaty amendment or Article 48(6) decision falls within Clause 4.This will not normally be problematic in relation to Treaty amendments that create a new category ofcompetence, since this would then feature as an explicit addition to the relevant category ofcompetence listed in Articles 3–6 TFEU. It may, however, be more contentious whether a Treatyamendment is regarded as extending an existing head of competence. The answer will dependimplicitly or explicitly on the level of abstraction or detail at which the question is posed. Thus if oneasks at a general level whether the EU has competence to regulate the flow of goods within the internalmarket the answer would be yes, and hence modification of the particular Treaty rules in this areawould not be regarded as extending the competence thus defined. If, by way of contrast, the initialinquiry is more specific the answer might well be different. Thus if the initial inquiry is as to the moredetailed Treaty rules that define the EU’s regulatory competence over the flow of goods in the internalmarket, then a change to detailed rules is more likely to be regarded as extending competence inthat area.

(b) The preceding discussion addressed the question asked in relation to Treaty amendment and Clause 2of the EU Bill. That analysis is equally applicable to Clause 3, but there are additional problems withClause 3. It is predicated on a Decision made under Article 48(6) TEU that creates or extends EUcompetence, or confers power, in one of the ways listed in Clause 4. However neither the Bill, northe EM, mentions the tension between this formulation and the fact that Article 48(6) TEU statesexpressly that a Decision made there under “shall not increase the competences conferred on theUnion in the Treaties”. This leads to the following tension. The EU makes a Decision pursuant toArticle 48(6), which can only be intra vires if it does not increase competence. Clause 3 of the EUBill by way of contrast is predicated on the contrary assumption, that a Decision under Article 48(6)could create or extend, and hence increase, competence. To be sure Clause 3(3) embodies theexemption condition, such that if the Article 48(6) Decision did not engage any of the issues in Clause4 a referendum would not have to be held, and an Act of Parliament would suffice to validate themeasure. This does not, however, alter the force of the point being made here: from the EU’sperspective no Article 48(6) Decision can increase EU competence; from the perspective of the EUBill some such Decisions can do so. This will inevitably lead to legal and political tension betweenthe EU and UK. This is thrown into sharp relief by considering the sequence of events. The PrimeMinister in the European Council agrees to an Article 48(6) Decision. Unanimity is required andhence if the Prime Minister agrees to the Decision it must be on the premise that it does not increaseEU competence, since otherwise it would be ultra vires. The Prime Minister steps off the plane fromBrussels, having penned his signature in good faith on the assumption that the Article 48(6) Decisiondid not increase competence. The premise behind Clause 3 is that a week or month later a Ministerof the Crown calls for a referendum on the ground that the Article 48(6) Decision extends competenceor power in one of the ways listed in Clause 4. In political terms the UK looks foolish to say the veryleast, and the judgment of the Prime Minister is inevitably called into question, since his affirmationthat the Article 48(6) Decision is intra vires because it does not increase EU competence iscontradicted by the later action of his Minister. Indeed the political fall out could well be worse. Itseems inconceivable in political terms that a Minister of the Crown would invoke Clause 3 withoutclearance from the Prime Minister and Cabinet. If the Prime Minister were to give such clearance hewould then be subject to the critique that at the very least his initial judgment in agreeing to theArticle 48(6) Decision on the assumption that it did not increase EU competence was unsound. Thepolitical fall out might be greater: the Prime Minister might be accused of being disingenuous whenagreeing to the Article 48(6) Decision. It might be contended that he always intended to invoke Clause3 when back in the UK, on the premise that the EU Decision increased competence, therebycontradicting the assumption on which he signed the Article 48(6) Decision when in Brussels.

(c) The decision as to whether there has been a transfer or extension of power to the EU is furthercomplicated by Clause 4(4), and more especially Clause 4(4)(a), which provides that a Treatyamendment or Article 48(6) decision does not fall within Clause 4 merely because it involvescodification of practice under the TEU or TFEU in relation to the previous exercise of existing



competence. It could well be difficult to decide whether Clause 4(4)(a) is operative so as to obviatethe need for a referendum and Act of Parliament. The difficulties in this respect are not dispelled bythe example given in EM para 56. It is said that Clause 4(4)(a) would cover the case where the EUacted under Article 352 TFEU, the flexibility clause, because a measure was required for which therewas no specific legal base. If a later Treaty change were to provide a specific legal base and that legalbase merely codified existing use then no referendum would be required because the power hadalready been transferred. However if the new legal base did more than codify the existing use areferendum would be needed. There may well be real difficulties in deciding on this divide. It mightalso be argued that the underlying premise is itself questionable. The mere fact that EU action hasbeen authorized in a particular instance under Article 352 is not necessarily the same as providing anew head of competence, even if the new head covers the same terrain as the specific measure enactedunder Article 352. The reason is as follows. The specific measure enacted under Article 352 is justthat, a measure that is accepted by the EU institutions at the time it is made. It is no guarantee that ifan analogous situation occurred later the EU institutional players would necessarily decide that theconditions for Article 352 were met. By way of contrast the inclusion of a specific head of competencedealing with the relevant issue would provide a firm base for future EU action in that area.

(12) Are the distinctions in the Bill between national approval by referendum, Act of Parliament orResolutions of both Houses consistent with the nature of the competence or power being transferred orextended? This is an important question, the answer to which raises issues that may not have been fullyperceived by the framers of the EU Bill.

(a) The structure of the EU Bill in this regard can be summarised briefly as follows. Clause 2, Treatyamendment pursuant to the ordinary revision procedure in Article 48(2)-(5) TEU: there must be anAct of Parliament plus positive vote in national referendum, unless the exemption condition applies.Clause 3, a Decision made pursuant to the Simplified Revision Procedure in Article 48(6): there mustbe an Act of Parliament, plus positive vote in national referendum, unless the exemption orsignificance condition applies. Clause 6, the decisions listed therein are subject to Act of Parliament,plus positive vote in national referendum. Clause 7, the decisions listed therein are subject to approvalby Act of Parliament. Clause 8 is concerned with Article 352 TFEU: the basic requirement is approvalby Act of Parliament, or in one of the ways specified in Clause 8(4)-(5). Clause 9 deals with instanceswhere Parliamentary approval is required.

(b) The EM para 63 justifies the need for an Act of Parliament, plus referendum, in relation to the issuesmentioned in Clause 6 on the ground that they are equally important in substantive terms as thosedealt with in Clauses 2–3: they involve loss of the veto or entail transfer of competence. They shouldtherefore in the view of the EM be subject to the same conditions as in Clauses 2–3, even thoughmost decisions in relation to the matters listed in Clause 6 do not involve any Treaty revision. Clause7 requires approval by Act of Parliament, but not a referendum, the general rationale being that thesematters are less important.

(c) A commentator might take issue with the disposition of issues as between Clauses 6 and 7, or withthe matters included within Schedule 1 or 2. There is nonetheless a potential problem with the legalityof this strategy, which must be confronted.

(d) The Lisbon Treaty is carefully crafted with regard to the conditions that apply before a Treaty revisionor decision can take legal effect within the Member States. Article 48(4) TEU specifies thatamendments made under the ordinary revision procedure must be ratified in accord with theconstitutional requirements of each Member State, and Article 48(6) specifies the same requirementin relation to a Decision made under the simplified revision procedure. Viewed from this perspectivethe provisions in Clause 2 are not problematic legally: if the UK chooses these pre-conditions forconstitutional ratification so be it. The requirements in Clause 3 are also not problematic, insofar asArticle 48(6) states that approval of such Decisions can be in accord with national constitutionalrequirements, although Clause 3 itself is deeply problematic for the reasons given in 11(b)(i). Thepolitical implications of these constitutional requirements will be considered below.

(e) The situation with respect to the matters dealt with in Clauses 6–9 is different. These matters do notunder the Lisbon Treaty require approval in accord with national constitutional requirements. Insofaras Clauses 6–7 deal with issues covered by Article 48(7) TEU, the general passerelle clause, therequirement is that an initiative under Article 48(7) TEU must be notified to the national Parliament,and that it should have the opportunity to make known its opposition. There is no requirement forpositive approval via an Act of Parliament or a referendum. The difference in the legal position underthe Lisbon Treaty in relation to the other matters listed in Clauses 6–9 is even greater. Clause 6mandates an Act of Parliament plus referendum for all such matters. Clause 7 mandates an Act ofParliament. There is no authority for such requirements in the Lisbon Treaty. It would therefore clearlyhave been unlawful under EU law if the requirements for an Act of Parliament and a referendum hadbeen specified as conditions for decisions/regulations on the matters listed in Clauses 6, after EUdecisions on these matters had been made. It would equally have been illegal under EU law for anAct of Parliament to have been specified as a condition for the application of all the matters listed inClause 7, after EU decisions on these matters had been made. This point is reinforced by the veryfact that in some instances the Lisbon Treaty specifies that certain decisions can be subject to approval



in accord with constitutional requirements,13 the clear implication being that where this is notspecified it is neither required nor allowed. The EU decisions/regulations/directives on these matterswould be enacted and take effect in the normal manner specified by, for example, Article 289 TFEUand there would be no legal room for any limits in terms of referendum and/or Act of Parliament.

(f) The framers of the EU Bill were cognizant of this and sought to “finesse” the problem by framingClauses 6–8 in terms of pre-conditions for the UK minister to vote in favour of, or support, therelevant EU measures. This explains the wording of these Clauses: the schema is for a ministerialvote that leads to a draft EU decision, which can only be finalized after approval in a referendum and/or an Act of Parliament. It is therefore central to this strategy that these pre-conditions operate beforethe EU measure is finalized and takes legal effect. The key issue is whether this strategy is legallyvalid under EU law. This is, as one might say, a “nice” legal question.

(i) The argument for the legality of this strategy would be along the following lines. The LisbonTreaty requires ministerial consent in the Council before a measure is enacted. There is nothing toprevent this requirement of consent from being subject to certain conditions chosen by the MemberState. If the Member State chooses to condition the consent in a case where unanimity is requiredon a referendum and/or Act of Parliament as in Clauses 6–7 it is entitled to do so, and the strategyis lawful in terms of EU law. The UK government would undoubtedly press this argument beforethe ECJ if the matter ever came before it.

(ii) It would however be wrong to imagine that acceptance of the preceding argument would or indeedshould be a foregone conclusion. It would be perfectly possible to craft the outlines of an ECJdecision which reached the contrary conclusion. Thus it could be argued that Clauses 6–8 areindirectly undermining the schema of the Treaty. The Lisbon Treaty is quite clear when approvalin accord with the constitutional requirements of national law is required. This is true both interms of Treaty revision, and in terms of the limited instances where such approval is a pre-condition for the validity of a particular EU decision. Viewed from this perspective, the draftingstrategy that underpins Clauses 6–8 is simply trying to make approval in accord with nationalconstitutional requirements a pre-condition where the Treaty does not allow it. It could further beargued that if Clauses 6–8 were lawful it would be open to any Member State to pick any othersuch conditions, which could prejudice passage of EU legislation requiring unanimity. It is, forexample, difficult to see why a Member State could not condition its ministerial approval by arequirement that the Draft Decision should not be finalized unless and until national opinionsurveys had been conducted over a year to test people’s reaction to the draft measure. Thepreceding arguments could be further reinforced in other ways. Thus it could be contended thatthe schema in Clauses 6–8 does not meet the requirements of Article 16(2) TEU, whereby thenational representative in the Council “commits” the government of his Member State. It is difficultto see in what sense the national representative would be “committing” his state when approval ina national referendum was a pre-condition for finalizing the decision. There may moreover be veryreal legal as well as political difficulties with the idea of a Council draft decision that “sits there”pending the UK Act of Parliament/referendum.

(13) Are there areas of extension of competence and/or conferral of power which are not covered in theBill? A brief answer: no. The EU Bill is “very British”. Clause 4 covers any realistic, conceivable case. Theonly caveat is this. Clause 4(4)(c) in effect excludes new Treaty accessions from the need for a referendum.This raises an interesting issue. Given the zeal for involvement of the public via a referendum in all theinstances listed in Clause 4 it is difficult to see precisely why the people should not have a “voice” in relationto new entrants, more especially because the impact of accession on the citizenry may be far greater than inrelation to those issues where a referendum is provided under the Bill.

(14) Is it clear what a Minister must take into account when deciding whether “in his opinion” a proposalunder Clause 4(1)(i) and (j) is “significant”? How far in practice would such a decision be amenable tojudicial review?

(a) Clauses 3(4) and 5(4) provide no real indication of the criteria of significance. Nor does the EM paras40–42 furnish much guidance in this respect.

(b) The availability of judicial review would depend on the circumstances. Clause 3(4) assumes that anAct of Parliament approving the Article 48(6) Decision states that the decision only falls within Clause4 because of Clause 4(1)(i) or (j), and that its effect is not significant in the UK. Judicial review isnot in general available against a primary statute, and it would be difficult to imagine circumstancesin which review pursuant to the HRA would be relevant. It is possible to conceive of circumstancesin which judicial review might be sought of the ministerial statement made pursuant to Clause 5(4) ifsuch an action were brought before enactment of the statute referred to in Clause 3(4). If the courtswere willing to hear such a case, the judicial review would almost certainly be low intensity.

(15) How far is a decision whether or not to hold a referendum a legal question, amenable to judicial review,and how far a political question? The relevant considerations in answering this question are as follows.

(a) The EU Bill is framed in mandatory language. The holding of a referendum is not a matter within the13 This includes decisions listed in Clause 7(2) of the Bill, which covers Arts 25, 223(1), 262, 311 TFEU. The decisions covered

by Clause 7(4) contain no requirement or authorization for approval in accord with national constitutional requirements.



discretion of the government. It must be held where mandated, subject to the exemption condition,the significance condition, and Clause 4(4). This suggests amenability to judicial review. This is moreespecially so because there will often be no plausible argument that the exemption condition applies,given the breadth of Clause 4, and the significance condition can only serve to deny a referendum invery limited circumstances concerning Clause 4(1)(i) and (j).

(b) The principal difficulty is that if Parliament enacts a statute approving the Treaty amendment or Article48(6) Decision without holding a referendum then any judicial review action would be challengingthis primary statute. A legal action would run into traditional sovereignty reasoning: the courts do notreview the validity of primary statutes in the UK. There are nonetheless two possible ways to surmountthis objection.

(i) An aggrieved citizen or MP might try to frame an HRA case, arguing that denial of the referendumviolated one of the Convention rights brought into UK law by the HRA. The court would thenreview the Act of Parliament approving the Treaty amendment without the referendum pursuantto HRA sections 3–4.

(ii) An alternative would be to argue that while the courts will not review the validity of primarystatute on substantive grounds, they can do so in relation to arguments of manner and form. Thisis the “New View” of sovereignty advocated by writers such as Jennings, Heuston and Marshall,who contend that if, for example, an Act of Parliament specified that it could only be amended orrepealed by a two thirds majority, then a later statute that made such change by a simple majorityshould not be recognized by the courts because it did not comply with the conditions for itsenactment. It might be argued that the referendum requirement in the EU Bill is, by analogy, amanner and form condition, such that if a later statute were enacted without a positive vote in areferendum then the later Act of Parliament should not recognized by the courts. This reasoningis reinforced because of the wording of Clauses 2(2) and 3(2). The UK courts have not directlypronounced on the reasoning underlying the New View in relation to a case concerned solely withthe UK.

(c) There is another legal option available, which is to seek judicial review against the Minister. Clauses3 and 6 impose a clear duty on the Minister not to approve a final EU decision unless the referendumcondition is met and hence a judicial review action against the Minister might be contemplated if theMinister disregarded this condition. This may be scant comfort to the claimant if the Act of Parliamentapproving the EU measure has been enacted and if the EU measure has been finalized.

(16) What might be the effect of Part 1 of the Bill on the UK’s future relationship with the EU? The shortanswer: negative. There is little appetite for further Treaty reform after the near decade that it took to achieveratification of the Lisbon Treaty, and this is exemplified by the Member States’ initial reaction to Germany’spush for minor Treaty reform to safeguard its position constitutionally in the light of action taken in thefinancial crisis. Notwithstanding this fact, the EU Bill is likely to be regarded with emotions ranging fromdismay to anger within the EU and in many European capitals. The EU Bill is, notwithstanding the exemptioncondition and the significance condition, extraordinarily broad. It mandates a referendum and/or an Act ofParliament in relation to any Treaty change that extends or creates new competence, no matter how trivial orinsignificant the change, and even in relation to any extension of the EU’s objectives. The same requirementspertain to the matters listed in Clause 6, an Act of Parliament is required for the matters listed in Clause 7,with analogous restrictions operating in Clause 8. It is doubtful whether our European partners will view withequanimity the prospect of sitting on draft decisions while the UK enacts the relevant statute and organizes thereferendum. It is equally doubtful whether they will be content with the delays and possible vetoes on Treatyreform when such amendment is deemed necessary. This adverse reaction is likely to be heightened if suchchanges are prevented by a negative vote in a referendum when the voter turn-out is small. I doubt whethersignificant numbers of voters will exercise their franchise in relation to many of the issues on which areferendum is mandated by the EU Bill. I would not wish to be the one seeking to engage voters to participatein a referendum on whether, for example, a shift to qualified majority voting in the context of enhancedcooperation should take place. The political reality is that voter turn-out will often be low, maybeembarrassingly so. If the vote is negative on a 10% total turnout and blocks the desired change our Treatypartners will not be pleased, nor will they think the result has much in the way of legitimacy. The legal realityunder the EU Bill is nonetheless that a referendum must be held. Enactment of this Bill may well prove thetruth of the old adage, be careful what you wish for because it might just come true.

20 November 2010



Written evidence from Andrew Duff MEP 14

I welcome the opportunity to give evidence on the European Union Bill which, as the Chairman says, raisesissues of major constitutional significance for the United Kingdom. The Bill also raises significant questionsabout the evolving constitutional order of the European Union, and, naturally, about the future of the UK’smembership of the EU.

European Union Bill

The 'Sovereignty Clause' and the Status of EU law

1. Clause 18 appears to underline the logic of the European Communities Act 1972 in the context of thenew Treaty of Lisbon. At face value, this might be a useful and even necessary clarification.

2. As long as the 1972 Act remains in force the UK remains beholden to uphold any new or amended EUTreaty. So long and in so far as the UK is a member of the EU it must respect the primacy of EU law in thosematters where the states have agreed by treaty to confer competence on the Union. The Lisbon treaty sets outfor the first time precisely what those competences are (Article 5 Treaty on European Union (TEU) and Articles2, 3, 4, 5 & 6 Treaty on the Functioning of the European Union (TFEU)).

3. Member states have some latitude in how they act to give material effect to the primacy of EU law andits direct effect or application. If, after Lisbon, the UK wishes to change the way it chooses to articulate theUK’s compliance with the constraints and obligations which flow from its recognition of EU law, it may ofcourse do so. But at the end of the day if the UK is not to put itself in breach of EU primary law it mustconform in one way or another to the imperatives of all the legal acts of the EU and to the jurisprudence ofthe European Court of Justice (ECJ).

4. Politicians and the press may take fright at the large corpus of EU law which can sometimes seem todominate domestic law. EU law is certainly a new, separate and important legal order different from that ofinternational or national law. But it is not correct, in my view, to see EU law as a ‘higher autonomous legalorder’ but rather as the judicial and legislative expression of a federal level of authority in which neither thefederal level nor the state level is allowed to dominate the other. Indeed, the Lisbon treaty expressly enjoinsthe Union to respect the national constitutions of its states (Article 4(2) TEU); and alerts one to the federalprinciples of sincere cooperation (Article 4(3) TEU), subsidiarity and proportionality (Article 5 TEU). BothEU and national law are held to be binding on both the Union and its states. The Lisbon treaty has not suddenlyrendered the constitutional order of the EU hegemonic to the detriment of its states.

5. There seems to be an implicit suspicion behind the drafting of the EU Bill that the transfer of largercompetences to the Union and of greater powers to its institutions, as agreed under the new treaty, somehowdeparts from the traditional practice of pooling or sharing sovereignty in the common European interest andpropels us instead towards a destination in which the transfer of sovereignty actually diminishes the Britishnational interest. I do not share that assumption. Indeed, I welcome Lisbon as a genuine step forward in thegood governance of Europe in which the respective roles of the state and federal authorities become moreclearly defined (and therefore better protected) than ever before. Even national parliaments, which are said to‘contribute actively to the good functioning of the Union’, gain enhanced status in the EU system (Article12 TEU).

6. Lisbon lays down that the states agree to ‘confer competences [on the Union] to attain objectives theyhave in common’ (Article 1 TEU). Where competences are not so conferred, they remain with the states(Article 4(1) TEU). ‘The Union shall pursue its objectives by appropriate means commensurate with thecompetences which are conferred upon it in the Treaties’ and not by any other means (Article 3(6) TEU). Themultifarious checks and balances built into the Lisbon treaty disallow a leaching of national competence to theEU without a further treaty change: see, for example, the very careful definitions of the scope and force of theCharter of Fundamental Rights or the limitations placed on the deployment of the simplified treaty revisionprocedure (Article 48(6) TEU). Illegitimate ‘competence creep’ will not be tolerated. Article 352 TFEU—theso-called ‘flexibility clause’—is not about expanding the competences of the Union but about increasing thepowers of its institutions ‘[I]f action by the Union should prove necessary, within the framework of the policiesdefined in the Treaties, to attain one of the objectives set out in the Treaties ...’. Helpfully, Lisbon also sets outclearly what objectives the states hope to attain by dint of their membership of the Union and through theinstrumentalisation of the Union (Article 3 (1–5) TEU).

7. The government is therefore right, in my view, to claim that clause 18 of the Bill is declaratory only anddoes not alter the historic, existing or future relationship between the UK and the EU. ‘The rights andobligations assumed by the UK on becoming a member of the EU remain intact’. So also do the rights andobligations of the EU in respect of the United Kingdom.

8. That being said, there may well be occasions when the opinion of national constitutional authorities,including the House of Commons or the UK Supreme Court, will be found not to be in complete accord withthe substance of EU law or the judgments of the ECJ. Such discordance is best dealt with in the federal14 Andrew Duff MEP is spokesman on constitutional affairs for the Alliance of Liberals and Democrats for Europe (ALDE). He

was a member of the Convention on the Charter of Fundamental Rights and of the Convention on the Future of Europe. Herepresented the European Parliament in the Intergovernmental Conference which drafted the Treaty of Lisbon.



manner by effective collaboration between the respective courts, executives and parliaments. In a trustworthy,democratic and decentralised order based on the rule of law—in other words, a federal construct - not all legaldisputes of a constitutional nature need to be resolved definitively. (There is a certain flexibility in all goodfederations allowing room for pragmatic adjustment.) The EU institutions, which represent both the states andthe citizens (Article 10 TEU), are bound between them to ‘practice mutual sincere cooperation’ (Article 13(2)TEU). And on the whole they do.

9. The Court of Justice has powers to rule on disputes between states and among institutions and on actionsbrought by natural or legal persons (Article 19(3) TEU). Its only job is ‘to ensure that in the interpretation andapplication of the Treaties the law is observed’ (Article 19(1) TEU). It has no general juridical authority tointervene in national or domestic matters (although it may give preliminary rulings at the request of nationalcourts). The EU has no general competence to do what it likes. The EU is a federal union of states and citizensand not a federal state, and the ECJ is not a federal supreme court. The EU Treaties are certainly analogous tothe constitutions of the states but they are not the same.

10. Clause 18 has therefore rightly avoided the risk that an over-elaborate preoccupation with nationalsovereignty would impose on the UK Supreme Court powers to arrogate to itself a claim of right to rule onultra vires matters more properly left to the ECJ in Luxembourg. There are different and actually competingconcepts of sovereignty, and the EU Treaties remain sensibly silent on the sovereignty question. All that mattersis that the sovereign High Contracting Parties of the states ‘establish among themselves a European Union’(Article 1 TEU).

11. The establishment of the European Union is not irrevocable. Any state of the Union has always beenable to secede from membership under the terms of the Vienna Convention on the Law of Treaties by takinga unilateral decision according to its own constitutional requirements. In the case of the UK, abrogation ofmembership would be achieved by the repeal of the European Communities Act 1972. Sensibly, the Lisbontreaty installed a mechanism for the orderly withdrawal from membership status and the negotiation ofalternative arrangements between the states that go and those that stay (Article 50 TEU).

Restrictions on Treaties and Decisions relating to the EU

12. The coalition government is apparently committed to opposing any EU treaty change during its term ofoffice and the lifetime of the Parliament elected in May 2010. So we must assume that the measures the Billseeks to introduce in this Parliament, irrelevant to itself, are intended to bind its successor. The Committee willunderstand better than me how this squares with the classical concept of parliamentary sovereignty in whichno single act of one Parliament (not excluding the European Communities Act 1972) can bind its successor.

13. A second paradox is that this Bill purports to uphold the sovereignty of the Westminster Parliamentagainst the federalist forces of the European Union yet it does this by surrendering that very same sovereigntyof the Westminster Parliament to the vagaries of a popular vote. I would merely register here in passing mydistaste for the widespread resort to populist referendum campaigns as a substitute for more informedparliamentary deliberation. Exceptional referenda on regime change, domestic constitutional reform or onwhether to join (or leave) the EU are one thing. But the imposition of systematic referenda on EU matters willin the end, and probably quite quickly, bore the public, trouble the markets, weaken the Westminster Parliament,divide the political parties—and infuriate our EU partners.

14. The Bill proposes to instigate regular referenda within the UK on all manner of European questions. Thegovernment has not coordinated this move with its EU partners, none other of whom is intending to take thesame route. Indeed, rather the contrary: France and the Netherlands retreated from the use of referenda aftertheir experiences in 2005; other countries, such as Austria, Denmark and Ireland are desperate to avoid havingto hold future EU referenda. (Ironically, and Ireland apart, the only issue on which there will be referenda inother EU countries is enlargement—a federal issue if ever there was one—but on which very question the Billwould seem to rule out referenda in Britain.) The UK is indeed the odd man out, and its unilateral move hasplaced all its partners in an invidious position when it comes to future treaty negotiations. This Bill may notbe the wisest diplomatic move Britain has ever made.

15. What is true, in the aftermath of Lisbon, is that other national parliaments have taken steps to strengthenscrutiny of their own government’s performance in the European Council and Council of Ministers and to putin place more weighty parliamentary procedures than existed before when it comes to the ratification of certainspecified provisions of the Treaty, including the use of some passerelle clauses. It is good that the UKParliament is following this trend, although it is important to recall that mainland European countries alreadyhave in place entrenched constitutions which lay down precisely the checks and balances between executiveand parliament and between government and opposition. Some, like the Federal Republic of Germany, alsohave clauses in those constitutions which commit the state to integration within the European Union. The newrules introduced in the Bundestag are intended to improve the democratic quality of Germany’s contributionto the development of the EU, not to fortify the bastions of German national sovereignty.

16. The Bill is drafted for domestic purposes by a government which is in charge of its own national agendaand whose European policy is to support the EU status quo and to oppose EU reform. No single Europeangovernment, however, is so clearly in charge of the European agenda. And the status quo in Europe is anuncertain fixture. Like the man on the bicycle who falls off when he stops, the European Union has a dynamic



of its own in which constitutional change, for one reason or another, is an almost constant feature. At the timeof writing, one can already envisage seven treaty changes within the next few years, some more minor thanothers: the Czech and Irish Protocols to the Treaty of Lisbon, the addition of the 18 extra MEPs, the permanentloan facility for the eurozone, electoral reform of the European Parliament, and the accessions of Croatia andIceland. Within the next two years the Union will have to address the big federal questions of the reform ofthe own resources system and the new multi-annual financial framework (Articles 311 and 312 TFEU,respectively). In parallel with those financial negotiations, work on installing a proper common Europeaneconomic government will intensify: according to the provisions of the Bill such reforms would certainlytrigger a referendum in the UK, as would moves to strengthen sanctions and penalties against states, notexcluding the UK, which breach the excessive deficit procedure. The UK’s self-exclusion from the eurozoneand the Schengen Area are not cast-iron insurances against decisions being reached in the European Councilor at an Intergovernmental Conference (IGC) which impact upon the UK.

17. In any case, all treaty changes, whomsoever they primarily affect, will have to be agreed and ratified byall member states, including the UK. So the idea of there being a comfortable status quo in the EU on whichBritain, insulated by its treaty opt-outs, can ride out the storm seems to me, at least, to be far-fetched. Onemay usefully recall here, too, that, according to the ordinary treaty revision procedure, the European Councilcan decide to open an IGC by simple majority vote and that the European Parliament can choose whether ornot to prepare such an IGC by a constitutional Convention in which national parliaments take part (Article48(3) TEU). Experience suggests that Conventions can develop an important dynamic of their own.

18. Lack of clarity about when the UK will hold a referendum and when it will not is unlikely to help theEU reach consensus in sensitive areas of treaty change in particular under the simplified revision procedure(Article 48(6) TEU). It is likely that the terms of the Bill will be put to the test in the course of 2011 when amodest treaty change to cope with the problem of sovereign debt default will be made to either Article 122 orArticle 136 TFEU. Particular attention, therefore, should be paid by the Committee in this regard to thegovernment’s interpretation of Clause 4(1)(d), (e) and (f)(i), as well as of Clause 4(4)(b) on a treaty changethat applies ostensibly only to other states.

19. One aspect of the Bill which seems particularly odd from a government which purports to want to fosterits membership of the European Union is the provision under Clause 6(4)(i) whereby a referendum will beneeded if the UK decides to participate in an enhanced cooperation with other states in a particular area ofsingle market policy, such as EU patents. (The Lisbon treaty makes it clear that the very purpose of enhancedcooperation in such cases is to change the unanimous voting rule in the Council to QMV.)

20. Another curiosity is the insistence on having referenda even in those instances where the Lisbon treatyalready provides for a passerelle clause to be triggered by a unanimous decision of the European Council andthen subject to the unilateral right of veto of a single national parliament (Articles 48(7) TEU and 81(3) TFEU).The superimposition of a uniquely British referendum is typical of a British tendency, frequently criticised bythe Scrutiny Committee, to ornament EU law when transposing it into the domestic context.

21. Under all these scenarios, the British public will be invited to vote down an Act of Parliament endorsinga decision by the government of the day to participate in a positive move towards the attainment of an objectiveof the European Union to which the UK is committed by treaty. To say the least, the legal and political situationis likely to become surreal. The prospect of a confused referendum campaign won by a facile coalition of nay-sayers on a low turnout, with adverse reaction in the financial markets and a final loss of confidence ingovernment and parliament becomes all too probable.

22. One recalls that it was largely to escape from the British ‘red lines’ that the Lisbon treaty facilitatesenhanced cooperation between a core group of like-minded states. In some cases, as in criminal law, thepassage to enhanced cooperation is automatic once nine integrationist states find themselves frustrated byothers (Articles 82(3) and (83(3) TFEU). In other cases, the decision by a core group to go ahead and leaveothers behind will not be able to be stopped by this UK government or any other: with the exception ofcommon foreign and security policy, the decision to move to enhanced cooperation is taken by QMV (Article329 TFEU).

23. Many of the instances cited in Schedule 1 where a referendum would be needed under the terms of theBill are highly unlikely ever to be subject to treaty amendment. Nevertheless there remain a number of issuesmentioned here above where treaty revision or the use of a passerelle or of enhanced cooperation will sooneror later inevitably be sought by Britain’s EU partners and where the threat of a referendum in the UK will bedistinctly unhelpful to the good management of already complex negotiations.

24. The enactment of this Bill will greatly increase the number of ministerial statements and parliamentaryacts which will need to find their place in the parliamentary timetable. That is primarily a problem for theWestminster Parliament to resolve, but, even in the absence of referenda, the impact of delay to the EU’slegislative processes caused by these proposed changes in British domestic procedures should be acknowledged.The protracted ratification of the Lisbon treaty is still fresh in the memory and an additional cause for anotherslowdown in EU decision making will not be popular.

25. Presumably it is not the intention of the government to destabilise the European Union by fundamentallyand unilaterally altering the terms of British membership. Nor can it be the purpose of this Bill to hobble all



future governments in their dealings with the EU. But the Bill is nakedly constitutional in its character andintention. It alters the balance between the British people and Parliament at Westminster, as well as betweenParliament and Government. It accentuates British exceptionalism in the European Union, making the UK aless accommodating partner, and therefore inevitably tempting other EU states to loosen the ties that bind themwith the UK. Because of its constitutional nature one is drawn to wonder what set of circumstances wouldneed to prevail for a repeal of this EU Act to be possible.

26. Nobody would deny that Parliament is right to seek to take a tighter grip on the government’s conductof EU affairs. But one may question whether the prescriptions made in this Bill are not too ponderous in theirconstruction, too wide in their scope and too uncertain in their consequences for the long term to be sure it isthe right course to take. All in all, I find it difficult, even as a loyal foot-soldier of the coalition, to support thisBill, which where it is right adds nothing much new and where it is wrong pitches the UK into the realm ofprivileged partnership with the European Union, no longer a full member state—less at the heart of Europethan a torn limb. In the best spirit of coalition politics, we could live without it.

Written evidence from Professor Anthony Bradley15

Clause 18—Status of EU law dependent on continuing statutory basis

1. The bulk of this paper deals with clause 18 of the Bill, although I add at the end a short comment on Part1 of the Bill.

2. The Coalition Agreement included in chapter 13 (on the European Union) the statement that there shouldbe ‘no further transfer of sovereignty or powers over the course of the next Parliament’ and undertook to‘examine the case for a United Kingdom Sovereignty Bill to make it clear that ultimate authority remainswith Parliament’.

3. Clause 18 of the Bill is the result of such examination: see the statement by the Minister for Europe,David Lidington, on 11 October: HC WS col 3. I consider it to be an advantage that the clause does not usethe term ‘sovereignty’. That word is much used in political debate and in academic writing but its meaning isoften not clear: see, for instance, the final sentence of the Minister for Europe’s statement on 11 October. Inreferring to the practice of other member states in legislating on EU law, and instancing Germany, Mr Lidingtonstates that although the other member states “have a different constitutional framework, they have given effectto EU law through a sovereign Act”.

4 The term “sovereign Act” as used by Mr Lidington appears to confuse two meanings of the word‘sovereign’. (A) The sovereignty of states is a basic principle in public international law, referring to the criteriathat determine whether a territory is to be regarded as an independent state in its own right. It is fundamentalthat a state may accept obligations in international law by entering into treaties with other states, from which(it must be assumed) the resulting benefits make up for the new obligations. Treaty-making is the exercise ofsuch sovereignty, and thereby states may gain membership of international organisations. (B) Within the UnitedKingdom, our constitutional law recognises the sovereignty of Parliament. This is a quite different matter fromsovereignty in international law (the UK’s sovereignty in international law is exercised by Her Majesty’sGovernment). In very few states today (apart from the United Kingdom, there are none in Europe) does thesystem of constitutional law provide for a ‘sovereign’ legislature. Germany certainly does not, which makesMr Lidington’s statement on 11 October difficult to understand.

5. What Germany has is a written constitution (Basic Law) that deals with the federal division of powers,protection of fundamental rights, jurisdiction of the Federal Constitutional Court and so on. It is quite possiblethat the Minister for Europe had in mind Article 23 of the Basic Law, which was re-written in 1992 to takeaccount of German reunification, the Maastricht Treaty and the Constitutional Court’s jurisprudence on theEEC. 16 Other EU states have amended their constitutions to provide for European law (as, for instance, theRepublic of Ireland first did in 1972)—such provision may create an open door to receive EU law but it mayalso limit the dimensions of the door-way. None of these states have a ‘sovereign’ legislature, since the powersof the legislature are derived from the national constitution and are subject to it. The nature of the EU system,in particular the direct effect of European law, justifies a state in making express provision for EU law in itsconstitution. In such countries, the reception (or recognition) of EU law has been given by what is in thosecountries the ultimate national authority—the process for amending the constitution (le pouvoir constituant).Such recognition, as the German instance shows, may be compatible with the retention by the nationalconstitutional court of power to decide whether for any reason a provision of EU law is affected by nationallimits set on the recognition of EU law.

6 Dicey’s Law of the Constitution made famous the phrase “the sovereignty of Parliament”, but a more exactterm for the legal doctrine is “legislative supremacy”, whereby the power of the Queen-in-Parliament tolegislate is subject to no legal limitations, and the courts have no power to review the validity of Acts ofParliament. This doctrine is always considered to be subject to the limitation that Parliament is unable to bind15 Of the Inner Temple, barrister; research fellow, Institute of European and Comparative Law, University of Oxford; emeritus

Professor of Constitutional Law, University of Edinburgh16 See JEK Murkens, ‘ “We Want Our Identity Back”—the Revival of National Sovereignty in the German Federal Constitutional

Court’s Decision on the Lisbon Treaty’ [2010] Public Law 530–550.



its successors (a matter to which I return briefly below). An advantage of using the term supremacy rather thansovereignty is that it enables the supremacy of EU law to be balanced against the supremacy of national law. 17

7. What the legal doctrine of the legislative supremacy of Parliament does not address is the source of thatsupremacy—where does ‘ultimate authority’ lie in Britain? It is generally said that ultimate authority cannotderive from an Act of Parliament (since Parliament cannot pull itself up by its own bootstraps). Is then theonly other source of that authority to be found in decisions of the courts—in “the common law”? However,we again need to ask: what is the source of the courts’ power to decide? If the “common law” is the source,the rule of legislative supremacy is, to say the least, a rather unusual rule of the common law. We must furtherask whether, if the rule of legislative supremacy is merely a rule of the common law, (a) may the courts todayre-visit and modify the rule? and (b) may the rule be modified by an Act of Parliament? “Yes” was the answergiven to question (b) by Sir Ivor Jennings; and “no” was Sir William Wade’s answer.18 Fortunately I need nothere go deeply into these matters. A complete answer to the question of ultimate authority may rather be foundin the history of law and government in the United Kingdom since 1689, taking account of matters such as theBill of Rights 1689 (that gave a parliamentary basis to the monarchy and asserted the powers of Parliamentover the monarch) and the settled practice of the courts in denying that they have power to limit the legislativeauthority of Queen-in-Parliament. 19

8. To come specifically to clause 18. This in effect declares that the status in the law of the United Kingdomof EU law, as identified in the European Communities Act 1972, section 2(1), is dependent on there being anAct of Parliament that makes provision for this. I see no good reason to dispute what is almost a truism, but Iam not persuaded that there is a need for this even as a declaratory measure for the avoidance of doubt. If thisis enacted, we can be certain that if at a future date the UK Parliament wished to revoke the 1972 Act toenable Britain to leave the EU, an Act to do so would be upheld by United Kingdom courts. However, is thereany real doubt about this at the present time? For instance, in his elaborate discussion of overlappingsovereignties in Europe today, MacCormick accepted that Parliament retained the power to reverse the decisionin 1972 to enter Europe, 20 as others have also done. 21 The leading judgments in the Factortame affair donot exclude the existence of that power.

9. Whether or not there is a need for clause 18, the drafting is a little awkward in the phrase ‘only by virtueof an Act of Parliament’. (Possibly the clause would read more easily if it stated that ‘directly applicable ordirectly effective EU law ….. shall be recognised and available in law in the United Kingdom only wherethere is statutory authority for this’—in the great majority of cases that authority would be found in theEuropean Communities Act 1972.) But as is clearly stated in para 109 of the Explanatory Notes, what clause18 does not do, and could not do, is to alter the nature of EU law, its primacy within the EU system and itsrelationship with UK law. Thus, for instance, it does not (and could not) change section 2(1) of the 1972 Actinto a provision equivalent to the delegation of Parliament’s legislative powers to Ministers. The 1972 Act,against the background of European treaties and the case-law of the Court of Justice, continues to be the entry-point to a legal system that does not derive its character from the Westminster Parliament or from decisions ofUK courts. Nor does clause 18 provide an answer to questions about implied repeal of the kind that wereconsidered by Laws LJ in the Metric Martyrs case, a matter to which I return below.

10. I now turn to some difficulties that in my view arise from the Explanatory Notes, paragraphs 106–108.According to para 106, clause 18 addresses concerns that the doctrine of Parliamentary sovereignty “may inthe future be eroded by decisions of the courts”. If the fear is that at a future date Parliament might legislateto repeal the 1972 Act and end the application of EU law within the United Kingdom, only to find that theUK courts had nullified such legislation and required Britain to remain in continued membership of the EU,the fear is wholly unfounded. If the fear is that there could be another Factortame affair in which a statutoryprovision might be disapplied because it was incompatible with EU law, clause 18 would not lead to a differentresult. The reality is that so long as the United Kingdom continues in membership of the EU, the Diceyandoctrine of legislative supremacy has been eroded, and clause 18 does not address this. In a similar way, theeffect of the Human Rights Act has been an erosion of important aspects of legislative supremacy in theDiceyan sense. But such erosion as has taken place is not to be attributed to decisions of the courts, but to thelegislation enacted by Parliament. There may of course be scenarios of an intermediate kind in which there isan inconsistency between a future Act and rights under EU law: in such situations, UK courts will have tomake the best decisions that they can, taking into account the effect of sections 2 and 3 of the EuropeanCommunities Act 1972. Such decisions would not in my view be affected by clause 18.

11. Another difficulty in the Explanatory Notes comes from paras 107–108 dealing with the Thoburn case.In his closely argued judgment in that case, Laws LJ dealt with the opposing arguments of the two sides andrejected the extreme positions advanced by each of them. The Explanatory Notes do not present a balanced17 As Laws LJ does in his judgment in Thoburn v Sunderland City Council [2003] QB 151.18 For a recent discussion of this dispute, see M Gordon, “The Conceptual Foundations of Parliamentary Sovereignty” [2009]

Public Law 519–543.19 I argue this more fully in my chapter, “The Sovereignty of Parliament—form or substance?” in J Jowell and D Oliver (eds) The

Changing Constitution (6th edn, 2007; 7th edn, in press). See also N MacCormick’s theoretical development of a similar positionin Questioning Sovereignty (1999) e g at pp 85–6, 103; and J Goldsworthy, The Sovereignty of Parliament : History andPhilosophy (1999).

20 MacCormick, op cit, pages 88–89.21 See A Tomkins, Public Law (2003), page 117.



account of this complex judgment. The judge’s conclusion summarising the relationship between the competing‘supremacies’ of EU and domestic law was given in four propositions:

(1) All the specific rights which EU law creates are by the 1972 Act incorporated into our domesticlaw and rank supreme: that is, anything in our substantive law inconsistent with any of these rightsand obligations is abrogated or must be modified to avoid the inconsistency. This is true even wherethe inconsistent municipal provision is contained in primary legislation.

(2) The 1972 Act is a constitutional statute: that is, it cannot be impliedly repealed.

(3) The truth of (2) is derived, not from EU law, but purely from the law of England: the commonlaw recognises a category of constitutional statutes.

(4) The fundamental legal basis of the UK’s relationship with the EU rests with the domestic, not theEuropean, legal powers. In the event, which no doubt would never happen in the real world, that aEuropean measure was seen to be repugnant to a fundamental or constitutional right guaranteed bythe law of England, a question would arise whether the general words of the 1972 Act were sufficientto incorporate the measure and give it overriding effect in domestic law. But that is very far fromthis case.22

12. There is much force in the judge’s ruling that the statute book includes a number of “constitutionalstatutes” that may call for an appropriate response in the courts, in particular that they are not subject to beingimplied repeal. This conclusion is however difficult to reconcile with some of the orthodox propositionsasserted by Laws LJ in para [59]—in particular that relating to implied repeal. Further, as I have explainedelsewhere, I do not agree with the assertion that the British Parliament “being sovereign, it cannot abandonits sovereignty”; and I consider that the proposition that Parliament cannot bind its successors is an over-broad proposition.23

13. This paper is limited to consideration of clause 18. Nonetheless, as the previous paragraph indicates,discussion of legislative supremacy is likely to involve the proposition that Parliament is unable to bind itssuccessors. It is remarkable therefore that the Explanatory Notes to Part 1 of the Bill do not deal with theapplication of this proposition to the proposals in clauses 2, 3 and 6 that British approval to certain changes inEU law will require first to be approved by an Act of Parliament and that the change should be approved by areferendum. These clauses provide that the Act of Parliament to approve a specific change must containprovision for the holding of a referendum. It is one thing for Parliament to require that certain actions may betaken by the Government only when approval has been given for them by a further Act. But today’s Parliamentmay not require that further Act to include the requirement of a referendum. A future Parliament may of courseexpressly repeal or amend the requirement of a referendum clause, but (unless the present European UnionBill is recognised by the courts as being a constitutional statute, and thus immune from implied repeal) whatis the position if no referendum clause is included in the later Act—either because no such clause is proposedby the Government or if a referendum clause is proposed but is then defeated? The Explanatory Notes envisagethat certain ministerial decisions under Part 1 of the Bill will be subject to judicial review: is it also envisagedthat a future Act of Parliament that did not include a referendum clause would be subject to judicial review?Laws LJ in the Thoburn case declared that Parliament “cannot stipulate as to the manner and form of anysubsequent legislation”. Is not Part 1 of the Bill is attempting to do exactly that?

23 November 2010

Written evidence from Professor T R S Allan, Professor of Public Law and Jurisprudence, PembrokeCollege, University of Cambridge

European Union Bill

Clause 18 —Status of EU law dependent on continuing statutory basis

1. There is much debate over the nature and foundations of the doctrine of parliamentary sovereignty.Broadly speaking, two general approaches can be distinguished. On one view, parliamentary sovereignty is anexpression of ‘political fact’: the courts acknowledge the supremacy of Parliament as presently constituted,bowing simply to the outcome of historical events as they have unfolded. This was the view adopted byProfessor Sir William Wade (see ‘The Legal Basis of Sovereignty’ [1955] CLJ 172) and now endorsed byProfessor Adam Tomkins (para 29 of Professor Tomkins’s written evidence).

2. It is easy to see, in the present context, where that view might lead. When Parliament passed the EuropeanCommunities Act (ECA) 1972, in exercise of its sovereignty, the United Kingdom joined a new legal orderwhose law took primacy over national law. According to the established jurisprudence of the European Courtof Justice, at the time of accession, EU law enjoys a special authority derived from the EU Treaties; ratherthan being assimilated to domestic law, EU law has an independent and uniform existence throughout theMember States. As a practical consequence of what was done in 1972, EU law has been entrenched: its22 [2003] QB 151 at para [69].23 See the chapter from The Changing Constitution already cited; and AW Bradley and KD Ewing, Constitutional and

Administrative Law (15th edn, 2010), chapter 4.



operation in the UK can be brought to an end only by secession from the EU. (Compare counsel’s argumentin the Thoburn case [2003] QB 151, para 53 of the judgment.)

3. At the time of accession Professor J.D.B. Mitchell had put forward a similar view. The ECA 1972 merelyacknowledged the legal consequences of the fact of accession to the Treaty: there had been a ‘revolution’comparable to that entailed by enactment of the Acts of Union 1707, or Statute of Westminster 1931. ProfessorWade’s view of the effect of the Factortame cases was very similar. Parliament had chosen to embracemembership of the EU, with the obligations it entails, and the court had bowed to the consequences: there hadbeen a revolution which only the wholesale repeal of the ECA could reverse: ‘While Britain remains in theCommunity we are in a regime in which Parliament has bound its successors successfully, and which is nothingif not revolutionary.’ (Sir William Wade, ‘Sovereignty —Revolution or Evolution?’ (1996) 112 LQR 568, p.571.) Like counsel in Thoburn, Professor Wade cited Lord Bridge’s remarks in Factortame (No 2) [1991] 1AC 603, 658: ‘Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the ECA 1972was entirely voluntary.’ The House of Lords was acknowledging the new political facts.

4. An alternative approach rejects the idea that questions of law can be simply reduced to matters of fact.Political and historical events have to be interpreted in the light of general principles, giving weight to ourconceptions of democracy and fundamental rights. All questions about the meaning and effects of legislationare partly evaluative questions about legitimacy: how should statutory instructions be understood in the lightof the nature of the UK legal order as a liberal democracy based on the Rule of Law?

5. In the present context, it is necessary to consider not merely what Parliament did in 1972 but what it wasentitled to do. There is much force, I believe, in Lord Justice Laws’s view, expressed in Thoburn, thatParliament’s authority did not extend to the abandonment or surrender of its own continuing legislativesupremacy. The true basis for the reception of EU law lies in British constitutional law: ‘The conditions ofParliament’s legislative supremacy in the UK necessarily remain in the UK’s hands.’ (Thoburn judgment,para 59.)

6. The doctrine of ‘parliamentary sovereignty’ is itself conducive to some confusion, in my view; likeProfessor Bradley (para 6 of his written evidence) I prefer the term ‘legislative supremacy’, which signifiesthat Parliament is the supreme law-making body within the UK legal order. Sovereignty must, I believe, residein the legal order itself, from which Parliament’s legislative supremacy is derived. The nature and scope oflegislative supremacy are matters of common law in the sense that they are questions to be resolved, necessarily,by the courts in order to determine contested and doubtful cases. Such cases depend for correct resolution onconsideration of all the pertinent reasons. The present context, concerning the implications of Britishmembership of the EU, vividly illustrates the dependence of Parliament’s continuing legislative authority onjudicial interpretation of the nature of the UK legal order, viewed as a whole.

7. The Thoburn judgment provides a good illustration of the operation of the common law constitution. Inseeking to accommodate the European doctrine of the primacy of EU law with the supremacy of Parliament,as a matter of domestic constitutional law, Lord Justice Laws made —or rather proposed —a very modestchange to the general rule permitting implied repeal: it would be necessary for Parliament expressly to amendor repeal the ECA before it could be overridden by a later statute. The (common law) presumption thatParliament has no intention to create any conflict with directly applicable EU law is simply a reflection of thepractical consequences and requirements of UK membership of the EU. By recognising only the most modestadjustment of the previous understanding, sufficient to accommodate the Factortame decisions, the continuingsovereignty and independence of the UK legal order remains untouched.

8. Lord Justice Laws’s approach to legislative supremacy illustrates the importance of the question oflegitimacy. He notes that circumstances could be imagined when the ECA would be an inadequate basis forthe effective operation of EU law, even without any further parliamentary intervention: a European measureperceived to be ‘repugnant to a fundamental or constitutional right guaranteed by the law of England’ wouldbe repudiated. That would be consonant with the position of other Member States such as Germany, where theFederal Constitutional Court insists on the sanctity of rights guaranteed by the Basic Law. The correct approach,in my view, not only protects the future exercise of legislative supremacy by Parliament, but also provides anultimate guarantee against European measures that threatened basic human rights or other fundamentalprinciples of the UK legal order.

9. The Explanatory Memorandum, para 107, shows that clause 18 is intended to resist the theory whereby‘the law of the EU includes the entrenchment of its own supremacy as an autonomous legal order, and theprohibition of its abrogation by the Member States’. The clause is apparently intended to confirm the view ofLord Justice Laws, who insisted that since Parliament could not abandon its own continuing sovereignty, itwas not possible for the ECJ by its own jurisprudence to alter the constitutional basis on which EU wasreceived in the UK.

10. It is hard to see how clause 18, if enacted, could affect the existing constitutional position. If it is truethat the constitutional basis for the reception of EU law is a matter of British constitutional law, it must be truein virtue of a correct understanding of the common law. According to Lord Justice Laws’s account, Parliamentmay not abandon or surrender its continuing legislative supremacy, which is ultimately defined by judicialinterpretation of the UK legal and constitutional order. Clause 18 therefore makes no difference: since it is a



question of the nature and boundaries of Parliament’s powers, a statutory declaration adds nothing to theexisting common law position.

11. If, in the alternative, Thoburn were wrongly decided, and the correct position were that the autonomousEU legal order is now also the constitutional basis for the authority of EU law in the UK, clause 18 wouldequally be unable to alter the position. A court which accepted that the primacy of EU law was now entrenchedwithin the UK would be forced to conclude that clause 18, if enacted, was erroneous.

12. The Explanatory Memorandum, para 106, says that by ‘placing on a statutory footing the common lawprinciple that EU law takes effect in the UK though the will of Parliament and by virtue of an Act of Parliament,this will provide clear authority which can be relied upon to counter arguments that EU law constitutes a newhigher autonomous legal order derived from the EU Treaties . . . which has become an integral part of theUK’s legal system independent of statute.‘ It is not, however, possible to place such a common law principle‘on a statutory footing‘ because the principle concerns the nature of continuing legislative authority. If, forexample, a new statute were to purport to override, or derogate from, directly applicable EU law, there wouldbe a conflict with the legal consequences of the ECA, which only the courts could resolve. Doubts about thelimits or consequences of conflicting statutory instructions cannot be resolved by appeal to further suchinstructions without begging the question at issue.

24 November 2010

Written evidence from Vernon Bogdanor, Research Professor, King’s College, London

Note for House of Commons European Scrutiny Committee.

1. The European Union bill provides that a referendum must be held before there can be any amendmentsto the Treaty on the European Union or significant’ transfers of power from Parliament to the European Union.

2. There are a number of precedents, amounting almost to a convention, for the proposition that a referendumis required for a significant transfer of the powers of parliament downwards’ to devolved bodies. Logic wouldthen seem to require that a referendum also be needed for a transfer upwards’ to the European Union. Therationale in both cases is the same, and was first stated by Locke in his Second Treatise of Government, para.141. The Legislative cannot transfer the power of making laws to any other hands. For it being but a delegatedpower from the People, they who have it cannot pass it to others’. Voters, it might be said, entrust MPs asagents with legislative powers, but they give them no authority to transfer those powers, to make radicalalterations in the machinery by which laws are to be made. Such authority, it may be suggested, can be obtainedonly through a specific mandate, that is, a referendum. The referendum, therefore, could be argued to be inaccordance with, rather than in opposition to, the basic principles of liberal constitutionalism.

3. Nevertheless, a referendum is only needed for significant’ changes. It is held that a referendum is neededfor the introduction of primary legislative powers in Wales, but will not, I believe, be required forimplementation of the Calman Commission proposals on devolving revenue-raising powers to the ScottishParliament.

4. Although there is therefore a basic rationale for the European Union bill, it seems to me that its provisionsare inconsistent with the declaratory clause insisting that Parliament is sovereign. Indeed, the purpose of thebill is unclear to me. A government will not provide for a referendum unless it wishes to support a proposalfor treaty amendment or transfer of powers. If it is opposed to such a proposal, it can use its veto, since allmatters to be made subject to the referendum require unanimity. The present government has indicated that itwill not support any amendment or transfer of powers in this parliament. Therefore, the purpose of the billmust be to prevent a future government from supporting such an amendment or transfer without a referendum.The bill seeks, in other words, to bind a future government. That seems to me inconsistent with the declaratoryproposition that Parliament is sovereign. If Lord Justice Laws is right in his judgment in Thoburn v SunderlandCity Council [2002}, that Parliament cannot stipulate against implied repeal’, cited in the Explanatory Notesto the bill in para. 108, then, presumably, a future government could, if it wished, simply ignore a EuropeanUnion Act, and accept an amendment or transfer without a referendum. So the bill would have no purpose. Infact, I do not think that Lord Justice Laws was right. Therefore, the bill does have a purpose. But, if LordJustice Laws was, as I believe, wrong, then the bill purports to do what clause 18 declares to be impossible,namely to bind a successor Parliament.

5. Past referendums in Britain—the national referendum in 1975 and the various devolution referendums—have, with one exception, caused few problems. The exception was the Scottish devolution referendum of1979 when, although the Yes’ vote gained a small majority, this failed to surmount the 40% hurdle requiredby Parliament.

6. Turnout in some referendums has, however, been low. In the Welsh devolution referendum in 1997, just50% voted. In the referendum on a mayor and assembly for London in 1998, just 34% voted, even though ithad been suggested as part of the justification for the reform that there was great popular pressure for a London-wide assembly.



7. Because the referendum has worked well in the past, there may be some danger of overlooking possiblefuture problems. The first such problem would be a narrow majority against a proposal recommended by thegovernment on a low turnout. Suppose, for example, that a government recommended acceptance of a particulartreaty amendment or transfer of power, but, in a referendum, with a turnout of 26%, 13.5% voted against it,with 12.5% voting for. Ought the government to feel itself bound by such a result?

8. A second problem might be that of different outcomes in different parts of what has become a multi-national kingdom. Suppose, for example, that a particular proposal was endorsed in the United Kingdom as awhole, and endorsed in England by a small majority, but rejected by a large majority in Scotland. Then agovernment might well consider again whether it ought to be bound by the referendum.

9. The solution to these difficulties is to provide that the referendums be explicitly advisory. Before the 1975referendum on the European Communities, Edward Short, Leader of the House of Commons, told the Housethat This referendum is wholly consistent with parliamentary sovereignty. The Government will be bound byits result, but Parliament, of course, cannot be bound’. He then added, Although one would not expecthonourable members to go against the wishes of the people, they will remain free to do so’. 24

10. That was an accurate statement of the constitutional position as it was then. Opinions differ as to whetherit is possible for Parliament to legislate for a binding referendum. It would, however, be peculiar to do this ina bill which also declared that Parliament is sovereign!

11. The European Union bill declares that Parliament is sovereign. It then proposes to bind future parliamentsthrough a referendum lock. Was it not the Queen, in Lewis Carroll’s Through the Looking Glass, who declaredthat she had been able to believe in six impossible things before breakfast?

December 2010

Written evidence from Martin Howe QC

Inquiry into the European Union Bill

1. This evidence relates to the first phase of the Committee’s inquiry, on Part 3 of the Bill and the status ofEU law.

2. In late 2009, I published a paper (“Safeguarding Sovereignty: A Bill for UK Constitutional Rights in theEU”, Politeia) which advocated the statutory entrenchment of the supremacy of Parliament against the potentialerosion which might result from the application by our courts of the doctrine of the primacy of Community25

law. That paper (which I am making available to the Committee with this memorandum26) examines at greaterlength than is possible in this evidence a number of relevant legal decisions of the ECJ, of the courts of thiscountry, and of other Member States.

3. The central argument in that paper is that the UK’s fundamental constitutional doctrine, the supremacy ofParliament, is at least potentially vulnerable to erosion as a result of changes in judicial climate, because it isa doctrine expressed in the judgments of courts and the words of writers on constitutional law rather than in aformal written constitutional document. In this respect the United Kingdom’s constitutional order differs fromthe constitutional orders of the other Member States surveyed where, with the possible exception of Belgium,written constitutions define the ultimate limits of EU powers within the domestic legal order.

4. In these circumstances I am naturally pleased that the Government has brought forward a proposal inClause 18 of the Bill which is designed to address this issue. Such a clause in neither unnecessary (since thereis a real danger of such erosion), nor futile (which would be the case if ultimate sovereignty had already passedfrom Parliament by virtue of the European Communities Act 1972). I will therefore concentrate, in the lightof the issues raised in the Committee’s notice of inquiry, on whether the drafting of this clause is optimal toachieve its intended objective.

Relationship with the European Communities Act 1972

5. The heart of the potential ambiguity which the Clause is intended to address arises from the words usedin subsection 2(4) of the 1972 Act:-

“... and any enactment passed or to be passed, other than one contained in this Part of this Act, shallbe construed and have effect subject to the foregoing provisions of this section;”

6. These words on their face purport not merely to require that other Acts are to be construed so as to beconsistent with directly effective EU law, but also purport to limit the effect of Acts (both past and future).This alters, at least to some degree, the operation of the doctrine of sovereignty of Parliament. The drafting ofthe 1972 Act does not, either at this point or elsewhere, explicitly spell out the scope of this limitation on theeffect of future Acts of Parliament. The courts have (at least so far) said that this provision limits the effect of24 House of Commons Debates, vol. 888, col. 293, 11 March 1975.25 Now properly styled “EU law” after the coming into force of the Lisbon Treaty.26 Not printed.



later Acts of Parliament which are in conflict with EU law, even to the extent of rendering them partly orwholly inoperative, unless Parliament expresses a contrary intention.

7. However, this conclusion itself rests on interpretation of the 1972 Act against the background of thedoctrine of sovereignty of Parliament. The Explanatory Memorandum accompanying the Bill helpfully quotesparagraph 59 of the important judgment of Lord Justice Laws in the Thoburn (“Metric Martyrs”) case. In thisparagraph, he appears to express the view that Parliament cannot legislate to abandon its sovereignty: “TheBritish Parliament has not the authority to authorise any such thing. Being sovereign, it cannot abandonits sovereignty.”

8. In my opinion, this aspect of the judgment can be misunderstood. It is clear beyond any possibility ofdoubt that Parliament does have the power to abandon its sovereignty, if it were ever deliberately to take thatstep.27 The Parliament of the United Kingdom came into existence as a result of two successive Acts ofUnion, between England and Scotland and between Great Britain and Ireland. By the Act of Union withScotland, the Parliament of England dissolved itself and transferred its sovereignty to the new Parliament ofGreat Britain. Accordingly, it cannot be denied that the present day Parliament of the United Kingdom has thelegal power, were it to choose to do so, to abandon its sovereignty: either to the organs of a greater politicalunion to which the United Kingdom were to subscribe, or to transfer its sovereignty to a written Constitutionwhich created a legislature with constitutionally limited powers.

9. It follows that the observations of Lord Justice Laws about Parliament’s inability to abandon itssovereignty are only valid so long as the fundamental doctrine of sovereignty of Parliament is in place, andmust be read with this implicit limitation in mind. The argument is therefore circular. The argument would notapply if a court interpreting the 1972 Act were to take the view that Parliament’s intention in passing that Acthad indeed been to abandon or permanently transfer its sovereignty.

10. Accordingly the heart of the problem is remedying any possible ambiguity in the 1972 Act itself. Forthis reason it would be preferable if the wording of Clause 18 of the present Bill were to be inserted byamendment to stand as a new section within Part I of the 1972 Act, rather than standing as a section a separateAct. This would mean that it would then be encompassed by the words “other than one contained in this Partof this Act” in section 2(4) of the 1972 Act and there would be no doubt at all that it is not subject to section2(4). If the section resulting from Clause 18 stands as part of a separate Act, there is still room for a verbalargument that its effect is limited by the words in section 2(4).

11. In my view Clause 18 as presently drafted is valuable and is almost certainly sufficient to achieve itsintended purpose of preventing judicial drift towards the erosion of the doctrine of Parliamentary sovereignty.This is because it can be said that it is evident from the nature of the clause itself and from its express referenceto section 2(1) of the 1972 Act that it is intended by Parliament to limit, or at least to qualify by way ofclarification, the effects of section 2(4) and other provisions of Part I of the 1972 Act. However, since thepurpose of this clause is to prevent all doubt, it would ideally be preferable if the opportunity were taken tosquash conclusively any lingering arguments which might arise from the fact that it is not within Part I of the1972 Act.

Consistency with Declaration 17 to the Lisbon Treaty

12. This requires consideration of the case law developed by the ECJ on the doctrine primacy of Communitylaw (now EU law). This is dealt with more fully at pages 7 to 9 of my “Safeguarding Sovereignty” paper.Briefly, I consider that this doctrine as developed by the ECJ can be separated into two distinct aspects.

13. First, it is a well established doctrine of public international law that a State cannot pray in aid internalconstitutional or legal provisions as an excuse for non-compliance with obligations imposed by internationallaw. It is inevitable that a court such as the ECJ operating on the international plane should apply this doctrine.I will call this “external primacy”.

14. However, the language used in some of the ECJ’s judgments suggests that the courts of the MemberStates are under a legal duty arising directly from Community law to apply it in preference to all national lawsincluding provisions of the State’s own constitution. I will call this the doctrine of “internal primacy”. Thiswas most clearly stated in the following quotation from Internationale Handelsgesellschaft:28

“The law stemming from the Treaty, an independent source of law, cannot because of its very naturebe overridden by rules of national law, however framed ... Therefore the validity of a Communitymeasure or its effect within a Member State remains unimpaired even if it is alleged that it runscounter to either fundamental rights as formulated by the Constitution of that State or the principlesof a national constitutional structure”.

15. Despite this and other utterances of the ECJ on this subject, it is clear in my view that a doctrine ofinternal primacy is not accepted by a number of major Member States. Most explicitly, the Federal GermanConstitutional Court has made it clear in the Manfred Brunner case and in the more recent Lisbon Treatycase29 that the legal effectiveness of Community/EU law within Germany stems from the German Constitution27 This indeed was the view of A.V. Dicey.28 [1970] ECR 1125 at 1134.29 Please see passages referred to at pages 10–12 of the “Safeguarding Sovereignty” paper.



and is therefore subject to the limitations imposed by the German constitutional order. Accordingly Declaration17 to the Lisbon Treaty must be read subject to the limitation that most Member States do not recognise fullinternal primacy within their own constitutional orders.

November 2010

Written evidence from Jeffrey Goldsworthy, Professor of Law, Monash University, Australia

Submissions on Proposed EU Bill

1. The reasoning in the Thoburn case is that of two judges of the Court of Appeal. It cannot be taken to bea conclusive statement of the law. The reasoning is correct insofar as it asserts that UK membership of the EUis ultimately based on UK law. But the reasoning is incorrect insofar as it suggests that the doctrine ofparliamentary sovereignty is a matter of common law determined by the courts. That erroneous suggestion hasalso been endorsed in obiter dicta in the recent Jackson case, dealing with the Parliament Acts.

2. For the same reason (which I explain below), I disagree with the statement in the first paragraph of thisCommittee’s “Announcement of Inquiry”, dated 12 November 2010, namely:

“The Bill also seeks to place on a statutory footing the common law principle of parliamentarysovereignty with respect to directly applicable or directly effective EU law.”

3. It is dangerous for Parliament to state that parliamentary sovereignty is a “common law principle”.Because the common law is, today, generally regarded as judge-made law, this statement implies that thedoctrine of parliamentary sovereignty has been made by the judges—and if so, that the judges could at anytime “unmake” it, if they should come to the view that it is no longer justified. Parliament should not lend anysupport, even unintended support, to these implications.

4. The statement is not only dangerous, but false—both as a matter of history, and as matter of jurisprudentialanalysis. Detailed reasons for this view are given in the second chapter of my new book, “ParliamentarySovereignty, Contemporary Debates” (Cambridge UP, 2010), and the final chapter of my previous book, “TheSovereignty of Parliament, History and Philosophy” (Clarendon Press, 1999). As I explain there, it is absurdto maintain that, as a matter of historical fact, the doctrine was created by the courts. It is also based on thesimplistic and false notion that since the doctrine of parliamentary sovereignty could not have been created bystatute (for the reason given in the next paragraph), it must have been created by the common law.

5. The statement is also inaccurate in suggesting that the doctrine of parliamentary sovereignty can be placed“on a statutory footing”. Any attempt by Parliament to enact that it has sovereign power would be open to theobjection that it is begging the question—because the validity of that enactment would presuppose thatParliament already has the sovereign authority needed to enact it.

6. The true foundation of the doctrine of parliamentary sovereignty is general consensus among seniorofficial of all branches of government, supported by public opinion and based on commitments to principlesof political morality such as democracy. The principled commitments of Parliament itself, of the Crown, andof senior judges, are all essential parts of this consensus. For this reason, the doctrine of parliamentarysovereignty has a much broader and more democratic foundation than is entailed by the false view that it is adoctrine of judge-made common law.

7. Parliament (which includes the Crown) is perfectly entitled to express its principled commitments inprovisions such as s.18 of the proposed EU Bill. This can help to fortify and stabilise the consensus on whichthe doctrine of parliamentary sovereignty rests, by making the commitments of Parliament (and the Crown)unambiguously clear—especially for the benefit of the judiciary, in case of future uncertainty. But this cannotbecome the sole basis on which that doctrine rests.

8. If the judges were to abandon their principled commitment to the doctrine of parliamentary sovereignty,a very dangerous situation would arise in which the legal system of the U.K. would no longer rest on a stableconsensual footing. Parliament would not be obligated to meekly acquiesce in the judges’ change of mind,because it would not have to accept that the doctrine of parliamentary sovereignty is one of “common law”that they have unilateral authority to modify or repudiate. As explained, the constitution of the UK has a muchbroader and more democratic foundation than that.

9. To seek to bind future parliaments by prohibiting the enactment of legislation without a referendum firstbeing held is not consistent with the doctrine of parliamentary sovereignty.

10. This could not be effective without the prohibition being “self-entrenched”. In other words, theprohibition would have to apply to any future legislation seeking to bring about its own amendment or repeal.

11. But even then, it is not clear that the prohibition would be enforced by the courts in resolving a futureclash between the will of the earlier Parliament (enacting the prohibition) and the will of a later one (ignoringthe prohibition). The enactment of such a prohibition would amount to an attempted renunciation by Parliamentof a portion of its own sovereignty. But if a later Parliament were to ignore the prohibition, and repudiate thatrenunciation by reasserting its sovereign authority to legislate without a referendum, the judges would have todecide whether to accept the earlier renunciation, and enforce the prohibition, or to accept Parliament’s later



repudiation of that renunciation. If the judges took the latter path, the consensus that constitutes the doctrineof parliamentary sovereignty would have been re-established despite Parliament’s own previous attempt toalter it.

11. To make it more likely that, in this scenario, the judges would enforce the earlier statute prohibiting thefuture enactment of legislation without a referendum first being held, that statute should itself be put to areferendum. The support of a majority of voters for such a referendum requirement would greatly add to thestrength of the case in favour of its future enforcement notwithstanding Parliament later change of mind,indicated by its attempt to legislate without complying with that requirement. This is because obtaining thesupport of the voters for a requirement that their support be required in the future overcomes a principledobjection to the imposition of a referendum requirement by ordinary legislation. The objection is this: if anearlier Parliament can use ordinary legislation to implement its preferred policies, why should a futureParliament not have the same liberty? To put it another way, why should the later Parliament be bound by theexpression of a will that has no higher authority than its own will? This is the main justification of the orthodoxview that Parliament cannot bind itself. But if a referendum requirement is enacted with the support of amajority of voters in a referendum, the objection is overcome. A future Parliament could then be said to bebound, not by an earlier will of no higher authority than its own will, but by an earlier will that does havesuch a higher authority—the expressed will of the people.

November 2010

Written evidence from Michael Dougan, Dean of the Liverpool Law School and Professor of EuropeanLaw, University of Liverpool

Part 1 of the European Union Bill (Restrictions on Treaties and Decisions Relating to theEU)

1. The question of when to insist (in particular) upon the use of a referendum for the approval of certainchanges to the EU Treaties, or for the adoption of various decisions provided for thereunder, is essentially apolitical one to be determined by Parliament.

2. Nevertheless, that political judgment will be informed by various relevant policy considerations. On theone hand, there is the Government’s desire for both legal clarity and political accountability in defining thecircumstances when a referendum should be required for the approval of EU changes. That objective favoursemploying an exhaustive legislative definition, so that the decision about insisting upon the use of a referendumhas effectively been made a priori. On the other hand, there is a broader constitutional concern that the use ofreferenda should be reserved for issues appropriate to be determined through an instrument of direct (asopposed to representative) democracy. Establishing the appropriateness of using a referendum may well belargely a matter of reaching an a prior decision in the design of the Bill; but it might also and quite rightlyinvolve the exercise of subsequent discretion according to the circumstances prevailing during the operation ofthe final Act.

3. Furthermore, the exercise of political judgment about when to insist upon the use of a referendum for theapproval of certain EU changes should (preferably) result in a legislative scheme which can be accepted ascoherent and consistent even by those who disagree with its subjective political underpinnings. Indeed, it isclearly desirable that different forms of democratic scrutiny (whether by referendum, Act of Parliament, orsome lesser form of Parliamentary approval) are matched to different types of EU changes so as to ensure thatdecisions of equivalent constitutional significance are at least treated in a comparable manner.

4. As one might expect, the EU Bill resolves those tensions based upon a compromise.

Some EU changes will require approval by both Act of Parliament and popular referendum. Others willrequire approval by Act of Parliament alone. Still other EU changes are to be subject to a Parliamentaryapproval procedure.

To a large degree, the Bill seeks to provide an a priori definition of which EU changes are to be approvedaccording to which form of democratic scrutiny, i.e. maximising the objectives of clarity andaccountability. Nevertheless, the treatment of certain EU changes—in particular, the question of whetherthey may only be approved after a popular referendum—is based either implicitly or explicitly upon theexercise of some degree of subsequent political judgment.

5. This Written Evidence focuses upon three of the main (inter-related) questions which arise from that draftlegislative compromise, and which are referred to in the Terms of Reference for the European ScrutinyCommittee’s EU Bill Inquiry:

— are the criteria for the exercise of subsequent political judgment about the need for a referendum inthemselves clear and accountable?;

— is the matching of different types of EU changes to different mechanisms of democratic scrutinyexecuted in a coherent and consistent manner?; and

— what might be the impact of those choices upon future UK-EU relations?



6. The core conclusions of my investigation into those questions may be summarised as follows:

(a) On the surface, the criteria for making subsequent political judgments about the need for a referendumon certain EU changes—in particular, those falling within the “significance condition” provided forunder Clause 3—appear to leave much to the discretion of the competent minister and to be ill-suitedto act as a yardstick for close judicial review. However, that concept of “significance” could, inprinciple, acquire greater objective definition when located within the broader scheme of the Bill, i.e.by means of comparison with the treatment of other EU changes where there is a clear a prior decisionabout whether a referendum is either required (and thus assumed to be significant) or unnecessary(and thus assumed to be not significant). Yet it is difficult, in practice, to identify a coherent approachin that regard: some of the EU changes which are potentially subject to a referendum are of at leastdubious significance, especially when compared to the range of EU changes which may clearly beapproved by Act of Parliament alone.

(b) There is therefore a good case for reviewing the Bill’s current matching of different EU changes tothe available mechanisms for democratic scrutiny. In particular, one might argue that the exercise ofsubsequent judgment about the use of referenda, based upon the concept of “significance”, shouldplay a greater role across the operation of the Bill. So as to meet concerns about clarity andaccountability, that subsequent judgment need not necessarily be based upon ministerial discretion: itcould be exercised politically by Parliament itself; or entrusted to an independent panel or tribunal.

(c) In any event, although the coverage of the Bill in terms of democratic scrutiny (by one means oranother) of EU changes is generally comprehensive, it is possible to identify one potential loophole.That loophole concerns the UK’s decision to join an existing enhanced cooperation initiative, asregards which the participating Member States have already made use of the “internal” passerelleclause, so as to convert decision-making within the Council (acting in its restricted formation) fromunanimity to QMV. In such a situation, the Bill makes no provision for a referendum, or an Act ofParliament, or even Parliamentary approval—despite the fact that such a decision by the UK could beseen as having effects, in terms of a “transfer of power” from the UK to the EU, entirely comparableto an equivalent proposal to shift from unanimity to QMV outside the context of an enhancedcooperation, or where the UK is already a participant in an existing enhanced cooperation at the timeof the proposal to make use of the “internal” passerelle clause, in which situations the Bill does clearlyprovide for an Act of Parliament and in some cases also for a referendum.

(d) The final conclusion concerns the potential impact of the Bill on UK-EU relations. If the UK isperceived to have created a constitutional mechanism which has an in-built tendency to block EUchanges—even if generally perceived to be marginal, even if generally considered to be valuable—then there is a serious risk that the UK’s influence within the EU as a whole will be appreciablydiminished and furthermore that the EU’s capacity for future reform will be significantly inhibited.Nor should one neglect the potential impact of the Bill upon the UK’s internal politics and constitution:consider, for example, the likely pressure for “spillover” in the use of referenda from EU issues to abroader range of domestic decisions; the appreciable risk that both direct and representative democracywill be damaged, rather than enhanced, by the Bill’s system of “referendum locks”; and the uncertainimplications of those “referendum locks” for the fundamental principle of Parliamentary sovereigntythat the Bill otherwise claims to respect.

7. The remainder of my Written Evidence will substantiate those conclusions by more detailed reference tothe provisions of the Bill and of the EU Treaties.

(a) subsequent political judgments as to the need for a referendum and the importance of the concept /criterion of “significance”

8. As stated above, the Bill seeks largely to provide an a priori definition of which EU changes are to beapproved by means of both an Act of Parliament and a popular referendum. As regards only a relatively smallnumber of EU changes would the decision about whether to hold a referendum be based upon the exercise ofsubsequent political judgment.

9. In some cases, the exercise of subsequent political judgment is implicit in the operation of the Bill.

Consider, for example, Clause 4(4) and the question of whether a Treaty or Article 48(6) decision involvesmerely the codification of practice under the TEU or TFEU in relation to the previous exercise of an existingcompetence (in which case, it should be exempt from the requirement to hold a referendum that wouldotherwise be required pursuant to either Clause 2 or Clause 3 read together with Clause 4). Answering thatquestion implicitly requires the exercise of subsequent political judgment, which may legitimately involve thechoice between competing interpretations of the prevailing state of EU law, as well as taking into account theprecise nature of the proposed Treaty or Article 48(6) decision.

10. In other situations, the Bill is more explicit about preserving the exercise of subsequent political judgmentas to whether the conditions are fulfilled in practice for the mandatory holding of a referendum.

The most obvious situation here concerns Clause 3(4) read together with Clause 4(1)(i) or (j). Their combinedoperation depends upon a ministerial judgment about whether the relevant Article 48(6) decision (conferring



either a power to impose a requirement or obligation upon the UK, or a new / extended power to imposesanctions upon the UK) “is not significant” in relation to the UK.

The Terms of Reference for the European Scrutiny Committee’s EU Bill Inquiry draw specific attention tothis decision-making power. The Bill does not lay down expressly any criteria to define the threshold of“significance”. On the surface, Clause 3(4) would therefore seem to leave considerable room for the exerciseof ministerial discretion; and to be ill-suited to judicial review other than on procedural grounds or in the eventof a manifest excess of discretion.

The situation might appear different, however, if one understands the Bill as implicitly providing variouscriteria to structure the exercise of ministerial discretion pursuant to Clause 3(4). In the first place, one mightsee the scheme of the Bill in general, and of Clause 3 in particular, as effectively creating a presumption infavour of holding a referendum, with the burden falling upon the minister to justify otherwise. In the secondplace, there are a range of well-defined situations where a referendum is clearly required (and can be assumedper se to be “significant”). Conversely, there are a range of well-defined situations where a referendum isclearly not required (and can be assumed per se to be “not significant”, even if an Act or Parliament orParliamentary approval are still called for). An evaluation of the significance of any given Article 48(6) decisionfalling within Clause 4(1)(i) or (j) may thus be undertaken (essentially by analogy) within the broader schemeof the Bill.

11. From that perspective, one might say that the concept of “significance” is not limited to the specificoperation of Clause 3(4). Rather, the concept of “significance” underpins the entire Part 1 of the Bill: it servesto match different EU changes to different forms of democratic scrutiny in an appropriate and consistentmanner. In particular, one might say that the necessity to hold a referendum is always determined by whetherthe proposed EU changes are significant for the UK in terms of a “transfer of competence / power” to the EU.For those purposes, some EU changes are to be treated per se as significant on the basis of an a prior politicaljudgment as defined in the Bill itself. Other EU changes, however, are to be considered significant only in thelight of a subsequent political judgment; but that judgment, far from conferring a wide discretion upon theGovernment, must be informed by the criteria implicitly provided by the Bill.

12. Difficulties arise with that understanding, however, because it assumes that the a priori politicaljudgments enshrined in the Bill, concerning the necessity to hold a referendum, are indeed appropriate /consistent and would thus prove capable of structuring subsequent political judgments pursuant to Clause 3(4)in a way that would be more readily amenable to objective external scrutiny and, in particular, to close judicialreview. Yet the strength of that assumption may legitimately be questioned.

13. The current text of the Bill treats all the issues falling within Clause 4(1) (apart from measures under (i)and (j) when contained in an Article 48(6) decision; and also those situations falling under Clause 4(4)) as“significant” per se, i.e. automatically triggering the requirement to hold a referendum. Yet it is far from evidentthat any such measure should always be considered “significant” enough to justify the mandatory holding of anational referendum.

14. Issues arise, in particular, with Clauses 4(1)(b)-(h) dealing with the conferral of new or the extension ofexisting EU competences according to the various “competence categories” defined in Article 2 TFEU.

15. The referendum condition referred to in Clauses 2(2) and 3(2) of the Bill would clearly be activated inthe event of the creation of an entirely new field of EU activity within any of the Article 2 TFEU categoriesof competence, or the wholesale transfer of an existing field of EU competence “upwards” across the Article2 TFEU categories of competence, e.g. upgrading from mere complementary to shared competence; or fromshared to exclusive competence.

16. However, the existing wording of Clause 4(1) would also appear to catch the transfer (in whole or inpart) of an existing field of EU competence “downwards” across the Article 2 TFEU categories of competence,e.g. downgrading from exclusive to shared competence; or from shared to complementary competence. Suchsituations would still, after all, involve an expansion of shared or of complementary EU competence as referredto in Clause 4(1)(e) or (h) (respectively). Yet it would run entirely counter to the purpose of the Bill to requirea referendum for the approval of Treaty changes that would reduce (rather than increase) the EU’s existingregulatory powers and fall outside the spirit (as opposed to the letter) of the Bill. One assumes that, in such asituation, common sense would prevail: the interpretation and application of Clauses 4(1)(b)-(h) again dependsimplicitly upon the exercise of subsequent political judgment about whether an EU change should really beconsidered significant within the intended scheme of the Bill.

17. Conversely, the current wording of Clause 4(1) would seem always to catch the partial transfer of anexisting field of EU competence “upwards” across the Article 2 TFEU categories of competence, i.e. throughamendment of the detailed legal bases contained in Part Three of the TFEU, in implementation of / derogationfrom the highly generalised lists of competence fields provided for under Part One of the TFEU. Yet such areform might well envisage only a very minor change to the division of competence between the EU and itsMember States: for example, the limited conferral of a narrowly defined power to harmonise national laws asregards a specific aspect of a policy field which would otherwise remain categorised as one of merelycomplementary EU competence. Consider, by analogy, Article 168 TFEU on EU action in the field of publichealth: EU competence in that field is generally of a purely complementary nature, but there are a few specified



issues (such as the quality and safety of organs and substances of human origin) where the EU does enjoy thepower to harmonise national laws.

18. Moreover, Clause 4(1) would also catch any expansion of the scope of EU action within one of theexisting competence categories (even if that does not involve a transfer “upwards” per se). If such an extensionconcerned a field of exclusive EU competence, the political objectives of the Bill might well justify treatingsuch a change as significant enough to warrant an intensive degree of democratic scrutiny. But the situationmight appear different when it comes to an extension in the scope of an existing EU complementarycompetence, i.e. the power merely to adopt recommendations or incentive measures, excluding anyharmonisation of national law, in a field such as education, public health, tourism or cultural policy.

19. One might legitimately query the a priori political judgment that a referendum should be consideredmandatory in each and every such situation, without any room for the exercise of subsequent political judgmentas to the appropriateness of holding a national plebiscite, taking into account the scale, scope and significanceof the proposed “transfer of competence” from the UK to the EU.

20. That is particularly true when one considers some of the other “transfers of competence / power” fromthe UK to the EU which, according to the a priori political judgment enshrined in the Bill, clearly do notattract a referendum and may be approved by Act of Parliament alone: for example, the abolition of nationalvetoes within the Council as regards EU legislation concerning the introduction of restrictions on third countrycapital movements (Article 64(3) TFEU); as regards the negotiation and conclusion of certain internationalagreements within the context of the common commercial policy (Article 207(4) TFEU); or as regards thelanguages used by the EU institutions (Article 342 TFEU). Such reforms may seem comparable in significanceto minor alterations to the existing state of EU competence, yet the latter would always fall within the scopeof Clause 4(1).

21. Without doubting that the question of when to insist upon the use of a referendum for the approval ofcertain EU changes falls to be determined by Parliament, it is nevertheless open to debate whether the currenttext of the Bill provides an entirely appropriate and consistent model for making that political choice. Somereally rather minor changes to the Treaties would nevertheless have been classified a priori as important enoughto require a full national referendum. That prospect could, in turn, tend to frustrate any attempt to defineimplicitly the criterion of “significance”, specifically for the purposes of implementing Clause 3(4); or to arguethat that criterion is capable of providing a more meaningful yardstick for the judicial review of relevantministerial decisions.

(b) towards a more coherent / consistent approach to the use of referenda?

22. The solution to those problems surely lies in a critical reappraisal of the a priori political judgmentsoffered by the Bill about the need to hold a referendum; and more generally, of the balance currently struckbetween reliance upon a priori and the opportunity for subsequent political judgments as a means ofdetermining the appropriateness of a referendum in respect of any given EU change.

23. For example, the “significance” test currently applied, pursuant to Clause 3(4) only as regards Article48(6) decisions relating to Clause 4(1)(i) or (j), might be extended so as to cover other measures falling withinthe scope of Clause 4(1) for the purposes of both Clause 2 and Clause 3 of the Bill.

Such an extension might not be considered at all appropriate (say) in the case of Clause 4(1)(k), (l) or (m)—all of which can justifiably be considered “significant” per se.

But a “significance” threshold could well be employed in respect of Clauses 4(1)(b)-(h)—as regards whichit is possible to foresee proposals for minor amendment where a national plebiscite would seem unnecessaryor even inappropriate.

For the sake of completeness, the same “significance” test could also be applied in respect of EU changesfalling within the scope of Clause 4(1)(a), i.e. an extension of the EU’s objectives as set out in Article 3 TEU.It is well-established that the objectives contained in Article 3 TEU do not in themselves create any decision-making powers and cannot per se provide the source of any binding rights or obligations. They serve primarilyas a guide to the exercise of the more specific competences conferred upon the EU elsewhere in the Treaties.The only situation in which an extension of EU objectives under Article 3 TEU might be regarded asproblematic in competence terms relates to the “flexibility clause” contained in Article 352 TFEU, i.e. whichpermits the EU to adopt measures in furtherance of its objectives where the Treaties have not otherwiseprovided the necessary powers. But the exercise of EU competence under Article 352 TFEU always requiresunanimity in the Council and, in addition, would always be subject to the Parliamentary controls outlined inClause 8 of the Bill. Viewed against that background, any proposal to extend the EU’s objectives in a significantway could still justify a referendum pursuant to Clause 2 or Clause 3 of the Bill; but other more minoramendments to extend the EU’s objectives under Article 3 TEU need not require a national plebiscite.

24. Such a system—based on a broader application of the “significance condition” for the purposes of Clause2 and Clause 3—would not only improve the coherence and consistency of the broad scheme of the Bill; tothe same degree, it would also help make application of any “significance” test in practice better suited toexternal scrutiny, including through the medium of judicial review.



25. One might add that, if Parliament were to feel uncomfortable about leaving to a minister (subject onlyto the possibility of judicial review, which might well prove limited in nature) the exercise of subsequentpolitical judgment about whether to treat an EU change as “significant”—whether in respect of matters coveredonly by Clause 4(1)(i) or (j) (as under the current Bill) or as regards a broader range of issues falling withinthe scope of Clause 4(1) (as suggested above)—then it is possible to envisage alternative methods of scrutiny.For example, if the judgment were to remain essentially within the political domain, it could be reserved toParliament itself; or if it were preferred to minimise the political nature of any subsequent judgment as to thenecessity of a referendum, the matter could be referred to an independent panel or tribunal, for either adefinitive decision or the delivery of an advisory opinion.

(c) coherence and completeness of democratic scrutiny mechanisms

26. When it comes to evaluating the coherence of the mechanisms for democratic scrutiny over various EUchanges, as proposed under the Bill, attention should not only focus upon the scope of the “referendum locks”,but extend also to the other forms of control provided for under the Bill (Act of Parliament and Parliamentaryapproval) as well as the inter-relationship between them.

27. For example, it would be appropriate to compare for consistency the range of matters listed in Schedule1 (referendum thus required for change to QMV) with those falling outside the scope of Schedule 1 (Act ofParliament alone required for change to QMV). Similarly, one should cross-check those matters falling outsidethe scope of Schedule 1 (for the purposes of changing the applicable voting rules to QMV) but where asubstantive decision under the relevant legal basis would of itself require an Act of Parliament, against thosewhere a substantive decision would be subject only to Parliamentary approval, and those where no specificform of additional scrutiny / control would be applicable.

28. Listing the full results of such comparisons and cross-checks would perhaps unreasonably prolong thisWritten Evidence. Suffice to say that, apart from the issues highlighted in section a) above, the approach ofthe Bill to the matters falling within its scope of application appears to be both consistent and comprehensive.

29. However, the Terms of Reference for the European Scrutiny Committee’s EU Bill Inquiry ask specificallywhether certain “transfers of competence / power” are not covered by the Bill. The answer is that there doesindeed appear to be a potential loophole in the system of democratic control mechanisms proposed underthe Bill.

30. That potential loophole relates to the operation of enhanced cooperation under the Treaties. Enhancedcooperation is, in essence, the possibility that a group of Member States may be authorised to make use of theinstitutions, powers and instruments of the EU so as to pursue initiatives / adopt measures which will bebinding only upon the participating countries—both those which originally launched the enhanced cooperationand those which decide subsequently to join an existing enhanced cooperation. Article 333 TFEU contains two“internal” passerelle clauses through which the Council (acting unanimously in its restricted formation, i.e.taking into account only the votes of participating Member States) may decide to convert unanimity into QMV /a special into the ordinary legislative procedure, specifically for the purposes of the relevant enhancedcooperation.

31. Under the Bill, the “internal” passerelle clauses contained in Article 333 TFEU are listed in Schedule 1for the purposes of Clauses 2 and 3 read together with Clause 4: any proposal to amend the Treaty so as toabolish the requirement of unanimity within the Council, as regards a potential future exercise of the “internal”passerelle clauses, would thus require approval by both an Act of Parliament and a national referendum.

Furthermore, in accordance with Clause 6, approval by both an Act of Parliament and a national referendumwould also be required before actual use could be made of the “internal” passerelle clauses, where this wouldhave the effect of substituting QMV for unanimity in Council, provided that (first) the legal basis within theTreaties to which the proposed use of the “internal” passerelle clause relates falls within the scope of Schedule1 and (secondly) the UK already participates in the relevant enhanced cooperation (and thus forms part of theCouncil’s restricted formation for the purposes of voting on the “internal” passerelle proposal).

Finally, in accordance with Clause 7, approval by Act of Parliament alone would be required before actualuse could be made of an “internal” passerelle clause, where this would have the effect of substituting QMVfor unanimity in Council, in situations where (first) the legal basis within the Treaties to which the proposeduse of the “internal” passerelle clause relates does not fall within the scope of Schedule 1 and (secondly) theUK already participates in the relevant enhanced cooperation (and so again forms part of the Council’s restrictedformation for the purposes of voting on the “internal” passerelle proposal).

32. Those control mechanisms cover most, but not all, of the potential scenarios where the UK might forgoits national veto for the purposes of an enhanced cooperation. Consider the following situation. A group ofMember States (not including the UK) has been authorised to initiate an enhanced cooperation. Exercising the“internal” passerelle powers conferred upon the Council (acting unanimously in its restricted formation, thusexcluding the UK and other non-participating Member States), QMV is substituted for unanimity as regardsthe relevant legal bases for future measures adopted within the enhanced cooperation. The UK later decides tojoin the existing enhanced cooperation, and must accept all measures already adopted thereunder, including the“internal” passerelle decision to abolish unanimity in respect of the adoption of any future acts.



Such a situation would fall outside the scope of Clause 2 or 3, read in conjunction within Clause 4: there isno question of amending the Treaty so as to abolish the requirement of unanimity for future potential exerciseof the “internal” passerelle clauses. Moreover, a referendum need not be held / Act of Parliament adopted inaccordance with Clause 6 (as regards Schedule 1 matters) and an Act of Parliament need not be adoptedpursuant to Clause 7 (as regards non-Schedule 1 matters): the UK was not a participant in the enhancedcooperation at the time the relevant “internal” passerelle decision was adopted by the Council.

33. In such situations—where the UK joins an existing enhanced cooperation after the Council has alreadydecided to abolish the national veto—the Bill makes no provision for any specific form of democratic scrutiny.Bearing in mind the aim of consistency and coherence in the overall scheme of the Bill, regardless of whetheror not one agrees with its subjective political underpinnings, that omission is perhaps surprising. Even if non-participants cannot (and should not be able to) prevent Member States within an existing enhanced cooperationfrom making use of the “internal” passerelle clause, one might have expected that the UK’s own decision tojoin an existing enhanced cooperation where QMV has already been substituted for unanimity should be subjectto both an Act of Parliament and a national referendum (in the case of Treaty provisions falling within thescope of Schedule 1) or at least to an Act of Parliament (in the case of Treaty provisions falling outside thescope of Schedule 1).

34. It is quite possible that, based upon actual experience of the enhanced cooperation provisions (whichafter all were used for the first time only in 2010), the Bill’s drafters had in mind the situation where enhancedcooperation is intended to be used only for the adoption of a single measure or small package of pre-identifiedmeasures. In such a situation, at the point of the UK’s possible subsequent participation, the relevant measure(s)would already exist and the pertinent decision for the UK would be to either opt in or remain outside the “endproduct” of the enhanced cooperation; there would be no relevant issue of giving up the national veto for theGovernment to decide upon, or for the Bill to control, only the substantive policy choice about whether therelevant measure(s) serve(s) the UK’s national interest.

However, insofar as such an understanding does explain the current design of the Bill, it has arguably failedto take full account of the reforms to enhanced cooperation contained in the Treaty of Lisbon. It was clearlyintended by the Convention on the Future of Europe—whose original proposals form the basis of the currentTreaty provisions—that it should be possible for enhanced cooperation to be used not only for the adoption ofa single measure or small package of pre-identified measures; but also to facilitate the wish of a group ofMember States to embark upon additional forms of cooperation as regards an entire policy field or issue (e.g. taxharmonisation, environmental policy or employment rights) for the foreseeable future—indeed, if so desired, ona scale emulating that of Economic and Monetary Union or the Area of Freedom, Security and Justice. Indeed,the “internal” passerelle clauses contained in Article 333 TFEU are part of a reform package intended preciselyto facilitate such a broader and more systematic use of the enhanced cooperation provisions.

If enhanced cooperation were indeed to evolve in that direction in the future, the Bill’s approach to the UK’ssubsequent participation in an initiative which had already converted the relevant legal basis from unanimityinto QMV would surely amount in practice to a significant loophole in the Bill’s system of democratic scrutinyover “transfers of competence / power” from the UK to the EU.

35. Furthermore, that omission can be contrasted with the approach of the Bill to ensuring democraticscrutiny as regards certain comparable situations. Consider, in particular, Clause 9: should the UK wish toparticipate from the outset in the adoption of a Council decision under Article 81(3) TFEU, to replace a specialwith the ordinary legislative procedure as regards family law measures with cross-border implications, theGovernment must both obtain Parliamentary approval (for the initial negotiations) and secure an Act ofParliament (for the final decision); but in addition, where a decision under Article 81(3) TFEU has alreadybeen adopted by the other Member States without the UK’s participation, any notification by the UK that itwishes subsequently to opt-into that decision must also be approved by an Act of Parliament. As theExplanatory Notes observe, “[t]his prevents the UK from opting into a measure without passing an Act ofParliament, merely because the decision has already entered into force” (para 91).

Consider also Clause 6: any decision of the UK to opt-into a future European Public Prosecutor’s Officerequires both an Act of Parliament and a national referendum; in addition, any decision to extend the powersof a future European Public Prosecutor’s Office, where the UK already participates, would depend upon bothan Act of Parliament and a national referendum. Thus, a decision of the UK to opt-into a future EPPO, wherethe latter’s powers have already been extended, would trigger a referendum / require an Act of Parliamentbased also upon the extension decision.

(d) potential implications for UK-EU relations

36. The Terms of Reference for the European Scrutiny Committee’s EU Bill Inquiry ask specifically whatthe effect of Part 1 of the Bill might be upon future relations between the UK and the EU—a speculativequestion, of course, but one which is nevertheless of crucial importance and warrants stepping back fromthe essentially technical issues, discussed above, about the Bill’s internal consistency or the identification ofpotential loopholes.

37. It should be stressed immediately that the referendum requirements proposed under the Bill gosignificantly further than the corresponding regimes in force in any other Member State. Indeed, if the Bill



were enacted in its current form, there would simply be no comparison between the position of the UK andthat of any other Member State (including Ireland, France and Denmark) so far as concerns the obligation tohold a referendum on EU matters.

38. Furthermore, under the current version of the Bill, it is also undeniable that the UK could be obliged tohold national referenda on EU changes which many of our EU partners would regard as politically marginal.As stated above, that follows from the current drafting of Clause 4 of the Bill, i.e. which leaves relatively littleroom for the exercise of a meaningful political judgment (other than the a priori choices enshrined in the Billitself) as to whether a referendum is really necessary or even appropriate in any given situation.

39. Moreover, one suspects that a significant proportion of the UK population would share that assessmentand be unlikely to participate in a referendum that was essentially felt to be minor / technical in nature. Therisk is therefore that the outcome of any such vote would effectively be dependent upon a small minority ofthe electorate, including a relatively large number of citizens predisposed to cast their vote primarily onideological grounds, rather than in the light of any considered reflection upon the specific issues at stake.

40. If the UK is perceived to have created a constitutional mechanism which has an in-built tendency toblock EU changes—even if generally perceived to be marginal, even if generally considered to be valuable—then there is a serious risk that the UK’s influence within the EU will be diminished: both tangibly, as the UKparticipates in any relevant negotiations; and more intangibly, if the UK becomes viewed as an inherentobstruction to EU reform and (more generally) to have placed itself even further from the fulcrum of EUgovernance.

41. That diminishment could persuade other Member States to view greater use of enhanced cooperation asa valid alternative to more generalised reform of EU decision-making procedures, i.e. as a means to avoid therisk of the UK blocking changes because of its “referendum locks”. Such reliance upon enhanced cooperationshould not be seen as neutral to British interests: although the UK might formally stand on the sidelines of anenhanced cooperation, the policies pursued thereunder may in practice exert an important influence upon theUK’s own regulatory choices. Furthermore, under the current version of the Bill, increased use of enhancedcooperation could risk undermining the spirit of the Bill, i.e. if the UK decides to join the enhanced cooperation,after use has already been made of the latter’s “internal” passerelle clauses, free from the sorts of scrutinyotherwise provided for under the Bill.

42. Those dangers should of course be considered in their proper political perspective. There is little appetiteacross Europe for significant Treaty reform: the Lisbon Treaty is generally accepted to have provided the basicframework for the EU’s functioning into the foreseeable future. Even more limited changes to the Treaties, orthe adoption of decisions possessed of constitutional importance as provided for under the Treaties, are likelyto be relatively uncommon phenomena (witness the ongoing reluctance of many Member States to endorse theidea of a formal Treaty amendment to provide for the establishment of a permanent bail-out fund).

43. Nevertheless, the dangers remain real enough. Even if it is true that major Treaty reform is a distantprospect, and lesser changes will hardly be a frequent occurrence either, it is still quite possible that we willsee a regular programme of limited Treaty amendments / decisions of constitutional importance: after all,within only a year of the Treaty of Lisbon entering into force, we have already had one IGC to adopt anamending protocol (on the MEPs envisaged under the Lisbon Treaty over and above those elected in the 2009elections) and are seriously debating another (for the bail-out fund). In such a scenario, where minor Treatychanges / decisions of constitutional importance replace major packages of amendments as part of the normalcycle of EU business, the Bill could (in its current form) exert an appreciable chilling effect upon the EU’scapacity for future reform; and for that reason could, right from the very outset, prompt adverse assessmentsof the UK’s leadership within and influence over EU affairs.

44. Nor should one overlook the ways in which this Bill might impact upon the UK’s internal constitutionaland political system. In the first place, there is the potential for “spillover” from EU matters into purelydomestic ones: if a referendum must be used potentially for even very minor / marginal EU issues, then thequestion could easily arise as to why referenda should not also be used for a much greater range of purelydomestic issues as well.

In the second place, there is the risk that (despite its good intentions) the Bill could ultimately underminerather than help restore faith in politics. If a referendum on a relatively marginal EU issue produced a lowturnout driven primarily by ideological voting, it could have the effect of devaluing in the eyes of the generalpublic the utility of referenda as a tool of direct democracy. In any case, the overall message of the Bill remainsthat the British people have good cause to mistrust the ability of our representative democracy to protect andserve our interests: elected politicians should not be left to decide even on relatively minor EU issues, for fearthat they will fail to exercise their power responsibly.

In the third place, there are the possible implications of the Bill for the principle of Parliamentary sovereignty.As stated in my previous Written Evidence concerning Part 3 of the Bill, the system of “referendum locks”proposed under Part 1 of the Bill could be seen as a direct challenge to the traditional doctrine that noParliament can bind its successors. Even if it were possible formally to reconcile the enactment of those“referendum locks” with some version of the principle of Parliamentary sovereignty (the subject of a moredetailed submission to the Inquiry by my colleague Michael Gordon of the University of Liverpool), such a



reconciliation would still represent a matter of profound constitutional importance which should surely be thesubject of thorough reflection and debate.

45. Such considerations might serve to reinforce the argument that—if Parliament is to attempt to imposebinding “referendum locks” at all—the Bill should be more focused upon (first) a small number of issueswhich are indisputably of fundamental national concern and can indeed be treated a priori as requiring anational plebiscite (e.g. joining the euro); and (secondly) allowing greater scope, in other situations, for theexercise of subsequent judgment (by a minister, by Parliament or through an independent panel / tribunal)about whether any given proposed EU change is really significant enough to justify holding a referendum.

LiverpoolNovember 2010

Written evidence from Jean-Claude Piris, Director-General of the Legal Service, Legal Adviser to theEuropean Council

Letter to the Clerk of the Committee

Thank you for your e-mail of 17 November 2010 regarding the European Union Bill and the invitation togive evidence to the European Scrutiny Committee of the House of Commons on the Bill. As I will not beable to travel to London, owing to a busy schedule before I retire on 30 November from my present functionsof Legal Counsel, Director General of the Council Legal Service, I take up your suggestion to furnish a briefwritten response. This response is made in a personal capacity. It does not represent the views of the Councilof the European Union or of its Legal Service.

You suggest that my response could usefully focus on the possible effect which Part 1 of the Bill could haveon the future relationship between the UK and the EU. I would also like to make a comment on Part 3 ofthe Bill.

Part 1 of the Bill

In the Lisbon Treaty, as in previous Treaties, the Contracting Parties agreed to insert, in addition to ordinaryrevision procedures which require ratification procedures by all Member States "in accordance with theirrespective constitutional requirements", other specific provisions which provide for easier procedures in certaincases. These provisions enable the European Council or the Council, for example, to adopt a decision changinga given area or case from unanimity to qualified majority voting (QMV).30 They were inserted in the Treatyin order to achieve a balance between the different views of the Contracting Parties. The Parties ratified theTreaty of Lisbon, thereby mutually committing to implement it bona fide—a principle of overriding importanceunder international law31—which implies preserving the purpose and effect of all its provisions.

It is undoubtedly for each Member State to determine the constitutional mechanisms through which it giveseffect to those legal obligations. It will be for the other Member States to assess whether the Bill, and moreparticularly Clauses 4 and 6 thereof, which introduce a referendum requirement with regard to the triggeringof most of the passerelles, respects those obligations. If they were to consider that the national legal constraintsof the UK were to lead to the practical impossibility of taking certain steps within the Union which would beperceived as necessary or desirable by many or all other Member States, it could not be ruled out that thecompatibility of the referendum requirement with international and EU law might become an issue.Furthermore, if, in a specific case, the requirement to hold a referendum were to result in an impasse in thefuture, this might lead to the UK being sidelined on certain issues. This is because it could trigger a tendencyamong other Member States to circumvent this situation, either by engaging in enhanced cooperation amongthemselves without the participation of the UK, or by concluding intergovernmental agreements outside theframework of the EU.

Part 3 of the Bill

The coexistence of the principle of the sovereignty of Parliament and the principle of the primacy of EUlaw is assured in the UK by the fact that the recognition and availability of directly applicable and directlyeffective EU law stems from the European Communities Act 1972. As long as the 1972 Act remains on thestatute book, EU law applies in the UK in full with the consequence that no further legal step is necessary toensure the recognition and availability in law of directly applicable or directly effective EU law. Clause 18 ispresented as being declaratory of that situation. It states the doctrine of UK constitutional law whereby, inapplication of the principle of the sovereignty of Parliament, EU law has effect in the UK by virtue of an act30 There are 21 such provisions in the Treaties. Eight of these are so-called passerelles which enable the European Council or the

Council to decide to switch from unanimity to QMV, two of these passerelles (the so-called general passerelles in Article 48(7)TEU) providing for a six month period during which any national parliament can oppose the draft decision. Out of these eightpasserelles, three already existed in the previous EC Treaty (Articles 67(2), second indent (family law), 137(2), second subpara.,(social policy) and 175(2), second subpara., (environment), renumbered Articles 81(3), second subpara., 153(2), second subpara.and 192(2), second subpara., TFEU).

31 The International Court of Justice has held that bona fide is "one of the basic principles governing the creation and performanceof legal obligations", see Case Border and Transborder Armed Actions, Rep. (1988), p. 105.



of the UK Parliament. That interpretation is confirmed by some of the Explanatory Notes to the Bi1132.Similarly, the EU Bill Factsheet33 states: "This is a declaratory provision and does not change the existingrelationship between EU and UK law or the rights and obligations applying to the UK as a Member State ofthe EU." And, in answer to the question whether the Bill will affect the primacy of EU law, the Factsheetstates categorically: "No. ... The principle of primacy was established prior to the UK joining the EuropeanCommunities. By approving UK membership of the European Communities Parliament accepted this."

Against that background, the intention behind the second sentence of paragraph 104 of the ExplanatoryNotes is not crystal clear : "The words 'by virtue of an Act of Parliament' cover UK subordinate legislationmade under Acts, and because of the particular context of this clause, also covers [sic] Acts and Measures ofthe devolved legislatures in exercise of the powers conferred on them by the relevant UK primary legislation." My understanding is that it is section 2 of the European Communities Act 1972 that gives effect in the UKto directly applicable and directly effective EU law. The 1972 Act has been amended from time to time, inparticular to take account of new treaties, but the far-reaching effect of section 2 is such that it has not beennecessary, for directly applicable and directly effective EU law to continue to have effect, to pass otherlegislation in the UK to take account of developments in EU law.

So long as Clause 18 does not change the present situation, which I assume to be the case, it is thereforeconsistent with Declaration No. 17 annexed to the Final Act of the Intergovernmental Conference whichconcluded the Treaty of Lisbon, and with the case law of the Court of Justice of the European Union.

BrusselsNovember 2010

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 ofthe 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 thatthe Government would examine the case for a United Kingdom Sovereignty Bill affirming that ultimateauthority remains with Parliament.

The common law principle that Parliament is sovereign and that directly applicable and directly effectiveEU law takes effect in the UK by virtue of Acts of Parliament (principally the European Communities Act1972) has been well recognised by our Courts and upheld in their judgments most notably in the Court ofAppeal judgment in the case of Thoburn v. Sunderland City Council [2002] 4 All ER 156 (the so called “MetricMartyrs” case).

As the Minister for Europe told the House of Commons on 15 June, the Government assessed whether thecommon law provides sufficient ongoing and unassailable protection for the principle of Parliamentarysovereignty in relation to EU law.

Some commentators take the view that the doctrine of Parliamentary sovereignty may not be unassailablyabsolute and may be qualified. Their argument is that the doctrine is part of the common law, judge-made andtherefore susceptible to being altered by the courts in the future. They suggest that the EU constitutes a newlegal order which has become an integral part of the UK’s legal system and which the UK courts are bound toapply. It follows that they argue that the primacy of EU law might no longer operate by virtue of the 1972 Actbut could become the basic norm underlying the UK legal system (or so called “Grundnorm”) to be appliedby the UK courts. That is, EU law could apply directly as a part of UK law as it would have a higherautonomous 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 lawand expressly overrode the 1972 Act would not be applicable in the UK and therefore the doctrine ofParliamentary sovereignty would be modified.

In taking this view they point not only to the arguments run in the Metric Martyrs Case but also to obiterremarks made by Lord Hope and Lord Steyn in R (Jackson) v. Attorney General [2005] UKHL 56 on thesupremacy of Parliament. It should be noted that this case concerned whether the Parliament Act 1949 waslawfully made given that it was made under the procedure set out under the Parliament Act 1911, without theconsent of the House of Lords and the implications that might arise if it was not for other legislation (theHunting Act 2004) made pursuant to it. No issues relating to the relationship between UK and EU law arosein this case. Furthermore, so far these obiter statements have not received wider approval in the courts and are32 For example:

- Paragraph 104: "Clause 18 is a declaratory provision which confirms that directly applicable or directly effective EU law onlytakes effect in the UK as a result of the existence of an Act of Parliament."- Paragraph 109: "This clause does not alter the existing relationship between EU law and UK domestic law; in particular, theprinciple of the primacy of EU law. The rights and obligations assumed by the UK on becoming a member of the EU remainintact."- Paragraph 110: "This clause is declaratory of the existing common law position ... "

33 http://www.fco.gov.uk/resources/en/pdf/3052790/2010/fivepage-factsheet.



thus not regarded as authoritative. However, they do raise the question whether there are some judges whosethinking 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 inthe United Kingdom have an uncontrolled constitution as the Attorney General implausibly asserts. In theEuropean context the second Factortame decision made that clear: [1991] 1 AC 603. The settlementcontained in the Scotland Act 1998 also point to a divided sovereignty. Moreover, the European Conventionon 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 legalorder in which the United Kingdom assumes obligations to protect fundamental rights, not in relation toother states, but towards all individuals within its jurisdiction. The classic account given by Dicey of thedoctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of placein the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principleof our constitution. It is a construct of the common law. The judges created this principle. If that is so, itis not unthinkable that circumstances could arise where the courts may have to qualify a principleestablished 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 thesovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute. It is notuncontrolled 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 bystep, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament whichDicey 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” MartinHowe 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 occurover time. Judge-made doctrines accepted today may in the future reach the stage of no longer beingaccepted, not because they have been expressly altered or abrogated by a specific piece of legislation ora conscious change, but because of a general change in the judicial or political climate. The continuedaccretion of powers to EU institutions and the passage of time together may result in such a change ofclimate, coupled possibly with greater judicial assertiveness and reduced deference to Parliament, nowthat the highest judges have moved from the House of Lords to the Supreme Court. Could our judges oneday decide that they owe their allegiance to some higher system of law deriving from the EU treaties, orfrom 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 thecontention that the doctrine of Parliamentary sovereignty is no longer absolute. Our assessment is that, todate, case law since 1972 has consistently upheld the principle of Parliamentary sovereignty. There is nouncertainty here.

However, by providing by statute that directly applicable and directly effective European Union law takeseffect in the UK by virtue of an Act of Parliament, Parliament will be affirming the existing position under thecommon law, and making a clear and unambiguous statement of its intention. As paragraph 106 of theExplanatory Notes says, this will ‘provide clear authority which can be relied upon to counter arguments thatEU law constitutes a new higher autonomous legal order derived from the EU Treaties or international lawand principles which has become an integral part of the UK’s legal system independent of statute.’ It will dealwith the main concern expressed by the commentators which is that there may be future judicial drift on thequestion 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 directlyapplicable or directly effective EU law on a statutory footing on the constitution of the UK? What additionalprotection does a statutory provision, which can be repealed, confer on the principle and practice ofparliamentary sovereignty beyond the common law?

Setting out categorically that directly applicable and directly effective European Union law takes effect inthe UK by virtue of an Act of Parliament puts the matter beyond speculation and will assist the courts byproviding clarity about Parliament’s intentions.

Repeal of this statutory provision would not affect the common law. Parliament would remain sovereign. Itwould just mean that this would no longer be written into statute, and the courts would lose this additionalclarity about Parliament’s intentions. An opportunity to guard against the future problem of judicial drift wouldhave been removed.



The then Lord Chancellor, Lord Hailsham, said during the debates on the European Communities Bill (8August 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 asubsequent 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 onthe interpretation of the European Communities Act 1972, particularly sections 2(4) and 3(1)? Does this Clauseapply 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 isdeclaratory. The clause will not alter the existing relationship between UK and EU law in particular the clausedoes not cast doubt on the primacy of EU law which had already been well established as a key principle ofEU law by the time that the UK acceded to the European Communities. In agreeing to membership of the EECthe UK Parliament through the European Communities Act 1972 accepted this position and this clause doesnot 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 directlyapplicable or directly effective EU law on a statutory footing on UK judges reviewing the acts of publicauthorities and/or national legislation for consistency with EU law? Paragraph 106 of the explanatory notessays that this Clause “will provide clear authority which can be relied upon to counter arguments that EU lawconstitutes a new higher autonomous legal order derived from EU Treaties or international law and principleswhich 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 domesticlegal order by virtue of the will of Parliament and through the acts its has adopted, principally the EuropeanCommunities Act 1972. As stated the clause is declaratory in nature and purpose and does not change therequirement on UK Courts to have regard to the EU Treaties. However, what it does do is make clear thatdirectly applicable and directly effective EU law do not have an autonomous status within the UK but taketheir authority from the fact that Parliament has through its Acts decided to import them into the domesticlegal order.

In the event of any litigation arising where a party sought to claim that directly applicable or directlyeffective EU law had an autonomous legal existence in the UK, the other party would be able to counter thisargument by referring to this clause. Similarly, judges could take this into account in addressing the argumentsraised in their judgments.

The ‘Metric Martyrs’ Case is an illustration of a case where a party to the proceedings sought albeitunsuccessfully 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 oflaw 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 joinedthe European Community in 1973.

Parliament gave effect to the principle of the primacy of Community law through the 1972 Act, in particularsections 2(1) and 2(4).

During the debates in Parliament in 1972 on the European Communities Bill the then Lord Chancellor, LordHailsham explained the position as follows:

“There is of course a potential conflict in every member country between the municipal and constitutionallaw 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 writtenConstitution, but in relation to the doctrine which we do possess and which to some extent takes the placeof 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 whentwo Acts conflict the latter is construed as amending or repealing the earlier one. It is to meet thisdifficulty that clause 2(4) has been inserted as an express provision in the Bill in so far as it provides thatobligations arising under clause 2(1) (Community obligations) have precedence over subsequentenactments. This therefore provides a new rule of construction of Statutes to substitute in the appropriatecase, but only in the appropriate case, for the judge-made rule to which I have referred. It is notinconsistent with the sovereignty of Parliament. It is, as… Lord Gardiner pointed out in 1967, anapplication 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 existingdoctrine of primacy and does not affect the incorporation of directly applicable and directly effective EU lawinto 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 EUlaw and UK domestic law, in particular, the principle of the primacy of EU law. However, it does reaffirm theposition taken by Lord Hailsham, namely that it is only through the application of the doctrine of thesovereignty of Parliament—ie through an Act of Parliament—that the principle of primacy takes effect inthe UK.

Written evidence from Professor Richard Rose FBA, Director, Centre for the Study of Public Policy,University of Aberdeen

The EU bill’s “referendum lock” from a European perspective.

1. The absence of a reference to referendums in the Lisbon Treaty shows the ambivalence of EU memberstates about the practice of holding national referendums on EU treaty changes. There is no desire in theEuropean Council to add to the existing complexity of expanding EU powers by introducing a referendum.However, member states cannot object to national referendums being held on EU measures, because 18 memberstates have done so.

2. Although most Members of the European Parliament consider referendums an unnecessary or undesirablefeature of representative democracy, this view is not shared by Europe’s citizens. When the 2009 EuropeanElection Study asked Do you agree or disagree that EU treaty changes should be decided by referendum?,63% voiced agreement, 18% were negative and 19% had no opinion. In every EU country most respondentswere positive. In Britain, 81% endorsed the principle of referendums on treaties, 9% were against, and 10 hadno opinion.

3. While the expansion of European Union powers in the past 25 years has increased the use of referendums,national referendums on EU matters remain relatively rare occurrences. However, the scope of the pendingBritish bill raises the prospect of referendums dealing with many policy areas and the volume of new EUpolicies is not in the hands of the UK Parliament. Hence, to avoid the risk of “referendum fatigue”, theCommittee should consider how to ensure that provisions for securing approval through a Resolution or Actof Parliament may be deemed sufficient.

4. The co-decision process of the EU involves substantial negotiations between member states to arrive atan agreement. The pending bill will alter the position of the British government in this process. It faces othergovernments with the choice of adopting a measure that would trigger a British referendum or limiting changesto measures that will not require a ballot or if they do, be reasonably sure of British endorsement. However,the greater the majority in favour of a transfer of powers, the less weight that other countries are likely to giveto a British referendum.

5. The bargaining that occurs among 27 countries in the negotiating process leading up to a treaty changecan produce a document that bundles together a variety of alterations, some acceptable to Parliament whileothers are not. However, a referendum ballot reduces choice to a simple Yes or No to the package as a whole.

6. The Committee may want to consider whether a British referendum should be binding or advisory. Abinding referendum has finality but also eliminates the possibility of re-opening negotiations in order to removeobjectionable clauses in an otherwise acceptable policy package. There are precedents regarding Denmark andIreland for the EU to modify a measure to make it more acceptable to a member state that has initially rejectedit. If a referendum result was advisory, provision could be made that, with or without renegotiation, anaffirmative vote of Parliament would be required for acceptance.

7. The political authority of a referendum result depends on the turnout and size of the majority. TheCommittee may want to consider whether the categorisation of a vote as binding or advisory should dependon the percentage of the electorate voting and/or on the size of a majority.

8. Because the EU referendum bill is concerned with procedures rather than the transfer of specific nationalpowers to the EU, it is not inherently anti-integration. When the European Election Study asked whetherEuropean integration should be furthered or had already gone too far, across Europe the median group, 30%,gave replies that indicated it depended on the issue. In Britain, 24% said integration has already gone too far,49% were in favour of more integration and 27% had no clear opinion. This indicates that in a referendum ona treaty change, the median Briton is likely to take a view related to what its specific aims are rather than treata referendum as a vote for or against EU membership.

(This memorandum draws on research being conducted by the author as the Principal Investigator in astudy of REPRESENTING EUROPEANS funded by the British Economic & Social Research Council. Theopinions expressed are exclusively those of the author.)

2 December 2010



41%45%

51%52%

55%55%

58%58%59%59%59%60%62%62%62%62%63%64%65%65%65%66%

71%74%

79%81%82%

88%

0% 50% 100%

SloveniaSwedenBelgium

NetherlandsLuxembourg

SlovakiaAustria

ItalyRomania

FinlandEstonia

GermlanyLithuania

LatviaCzech Republic

HungaryAll EU

FrancePortugal

DenmarkPoland

MaltaSpain

BulgariaCyprus

UKGreeceIreland

Pro-referendum

Source: European Election Survey, summer, 2009 ; www.piredeu.eu; number of respondents: 27,069.

Q. Do you agree or disagree that EU treaty changes should be decided by referendum?

Written Evidence from Simon Hix, Professor of European and Comparative PoliticsLondon School of Economics and Political Science

1. While I am sometimes portrayed in the British press as a “Euro-federalist” this is in fact incorrect. I havealways been highly critical of the EU, particularly the lack of democratic accountability of the institutions inBrussels, and because of these views I have been described in some other European countries as a “typicalBritish Eurosceptic”. I prefer to think of myself as a democrat, a political scientist, and a critical pro-European.For a more detailed discussion of my views I refer the committee to my book What’s Wrong with the EuropeanUnion and How to Fix It (Polity Press, 2008).

2. I believe the EU is in crisis. This is not only a crisis of the Euro, resulting from the banking and sovereigndebt crisis. It is a deeper malaise, resulting from growing nationalism in Europe, the lack of accountability ofthe EU institutions, the gradual decline of Europe’s influence on the world, growing threats to the single marketand the “four freedoms”, and the lack of national and European leadership to address the new economic andpolitical challenges facing our continent.

3. In historical terms the EU is a remarkable achievement. In a relatively short space of time we have createda supranational polity to govern a continental-scale market. A market does not create and govern itself; itrequires rules and standards, and these need to be agreed by political institutions. Hence, a degree of “political



integration”, with some delegation to a supranational executive and some majoritarian decision-making (withchecks-and-balances), is a price worth paying to create and sustain a continental-scale market. Most EU citizenstake for granted the economic, social, employment, consumption, travel, educational, and other freedoms andopportunities we now have as a result of economic and political integration in Europe. If the EU collapses,and I genuinely fear that this is a possibility, this would be a disaster of historic proportions for Britain. Britainshould be taking a lead in thinking about how to make the EU work more effectively and more accountably,which are the joint challenges in the coming years. It is in this light that I view the proposed EU bill.

4. In general, I welcome the overarching aims of the bill, which I see as threefold:

(1) to reconcile our constitutional principles with political and economic integration in Europe;

(2) to make the EU more accountable in Britain; and

(3) to constrain the hands of our officials and ministers who negotiate on our behalf in Brussels. However,I am not convinced of the value of several aspects of the bill, particular the provisions of Clauses 4and 6. I also believe that two significant issues are missing in the bill: one relating to enlargement,and the other relating to the transparency of the actions of our civil servants and ministers whenmaking decisions in the EU Council.

5. Starting with British constitutional principles, I believe that there has not been sufficient public debate inBritain about how European integration relates to our basic democratic constitutional principles and practices.This debate has taken place in several other countries, including Germany, France, Italy, Ireland, Sweden andDenmark, and public understanding of the EU in these countries is far higher than in the UK as a result. InBritain, for too long we have laboured under the illusion that “economic integration” and “political integration”can be separated, and that whereas we democratically agreed—in the European Communities Act 1972 and inthe membership referendum in 1975—to economic integration, political integration has proceededsurreptitiously, either via the actions of unaccountable bureaucrats and politicians in Brussels or by our owngovernments acting against the views of the people. British politicians from all the main political parties andeditors of our national newspapers and other opinion leaders have maintained the fiction that economic andpolitical integration can be separated. Almost no-one has bothered explaining that economic integration isimpossible without a certain degree of political integration, such as agenda-setting power by the Commission,majority voting in the Council, more powers for the European Parliament (to hold the Commission and themajority in the Council to account), more powers for the European Court of Justice (for enforcing economicrules), and some common economic, social and environmental standards. One only needs to read the debate inthe House of Commons before the vote on the amendment to the 1972 act to ratify the Single European Actto see how the economic elements of the treaty were emphasised in the debate by the (Conservative)government while the political aspects were largely denied. So, if the EU bill promotes a more honest debateand understanding amongst the British political establishment about what the EU is and why it exists, and howit can and should be reconciled with our constitutional principles, then this would be positive.

6. At first glance there appears to be a contradiction in the bill: between the principle of parliamentarysovereignty, which the bill seeks to reiterate, and the proposal that certain treaty reforms or EU decisionsshould require a referendum. I do not believe that there is a contradiction. The reason is that I do not believethat parliamentary sovereignty is a fundamental principle of the British constitution. This principle is arelatively recent creation, promoted by A.V. Dicey and others just over a century ago primarily for politicalconvenience. As soon as it became politically convenient to abandon the principle, many of these earlyconstitutional scholars did so—as Dicey himself did in his call for a referendum on the Irish Home Rule billin 1913–14. My reading of British constitutional history is that the much deeper English and Scottishconstitutional principle is that sovereignty ultimately resides with the people, and it is this Anglo traditionwhich informed the founders of the United States constitution and other democratic constitutions round theworld. In this view, a particularly majority in a parliament (which in practice is usually only an electoralplurality) can only exercise power which has been temporarily delegated to it by the people. For similarlysceptical perspectives on the notion of parliamentary sovereignty in British constitutional history I refer thecommittee to the recent books by two highly-regarded political scientists of Britain’s constitution: VernonBogdanor, The New British Constitution (Hart, 2009); and Iain McLean, What’s Wrong with the BritishConstitution (Oxford, 2009).

7. From this view of British constitutional principles, it is entirely appropriate that there should be areferendum on any fundamental shift in political authority from London (or Edinburgh, for that matter) toBrussels. This is consistent with the constitutional practice that has been established in Britain over the last 40years, with the referendum on EU membership in 1975 and the referendums on devolution to Scotland andWales in 1979 and 1997.

8. The question of what would constitute “a fundamental shift in political authority from London to Brussels”is more difficult, however. In this category I would certainly put the Treaty of Rome, the Single European Act,the Maastricht Treaty, the Amsterdam Treaty, the Nice Treaty, the draft Treaty establishing a Constitution forEurope, the Lisbon Treaty, any future decision on British membership of the single currency, and any futuremajor reform of the EU treaties, as a result of an Intergovernmental Conference. In other words, I see noproblem with Clause 2 in the Bill.



9. Clauses 4 and 6 are more contentious, however. On the one hand, any new policy competence for the EU,or any shift from unanimity to qualified-majority voting in the Council, or any movement from a speciallegislative procedure to the normal legislative procedure, could be conceived as a “shift in political authority”from London to Brussels, or a shift from intergovernmental decision-making procedures to (quasi-federal)supranational decision-making procedures. In practical terms, however, I do not consider most of the issueslisted under these clauses as individually significant enough to be described as a fundamental shift in politicalauthority (with the possible exception of the provisions on border controls in the Schengen Protocal). In myopinion, on most of these issues it would be sufficient to guarantee more accountable decision-making by ourdelegates in the Council (in COREPER and in the minsters’ meetings) to require that an act of parliament isneed for these decisions (as set out in Clauses 7 and 8), rather than a referendum or an act of parliament aswell as a referendum.

10. Nevertheless, I am sympathetic to the notion that a higher constitutional threshold than a simpleparliamentary majority would be desirable for Britain to agree to any of the changes listed in Clauses 4 and 6.If a government of the day is in favour of any such change and commands a majority of seats in the Commons,then it would be very easy for the government to push through an act of parliament to allow it to vote for aproposed reform in the EU Council. However, there are alternatives to a referendum. In particular, it would bepossible to require an act of parliament on the issues listed in Clauses 4 and 6 to be passed by a two-thirdsmajority of the Commons. Such an “oversized majority” is required in many democracies for parliamentaryacts that have constitutional implications, since a higher threshold guarantees that any such act cannot bepassed without broad political consensus. A similar provision could be used under Clauses 4 and 6, as hasbeen proposed by Iain McLean for other decisions of the House of Commons that have constitutionalimplications (see the book mentioned in 6, above).

11. In addition, requiring a two-thirds majority in the House of Commons is far more practical than requiringa referendum on such low-salience issues, as turnout in any such referendum would inevitably be very low,and it would be virtually impossible to restrict a referendum to the specific technical issue under discussionand not turn into a broader referendum on British membership of the EU. In short, I simply cannot imagine areferendum being held on any of the issues listed under Clause 4(1) or Clause 6(4). So, rather than mandatingsomething that could never in practice happen, surely it would be much better to introduce a constraint whichis entirely feasible, such as a higher decision-making threshold in the Commons.

12. Related to this issue, increasing the constraints on British officials in COREPER and our ministers inthe Council when making decisions can, under certain conditions, strengthen the hand of our delegates innegotiations. The theoretical reasoning behind this logic has existed in political science for some time: whatThomas Schelling in 1960 called the “paradox of weakness”. The idea, here, is that if there are significantdomestic constraints on a government in international negotiations, then the government can credibly threatenthat an agreement will be rejected domestically if they do not gain sufficiently in the negotiations. As a result,the greater the constraints on domestic governments in EU negotiations, the more they are likely to gain inbargains that have to be reached unanimously. There is considerable empirical evidence in support of thisproposition in research on EU budgetary bargains and also on negotiations in IGCs on treaty reforms. Forexample, it is widely claimed that the positions of Britain and France were strengthened in the negotiations onthe draft Constitutional Treaty after these two states announced that they would hold referendums on theoutcome of the IGC.

13. Nevertheless, high domestic constraints can only strengthen the hands of our officials and ministers if,first, these constraints are credible and, second, if there are no alternatives for the other member states to actwithout the UK. This is the case with most major treaty reforms, when a large number of member states wouldface similarly high domestic constraints, and so could not countenance moving ahead without the UK. Hence,where major treaty reforms are concerned, requiring a referendum is a credible threat and so is likely tostrengthen the hand of British negotiators, as well as provide a firmer constitutional foundation in Britain forthese collective decisions.

14. This is not the case with the less significant and specific issues listed under Clauses 4 and 6, since onmost of these issues there are alternatives for the other member states. If a British government is required topass an act of parliament and a referendum before agreeing to one of these provisions, the other member stateswill assume that this is not in fact a credible threat, as a referendum in Britain is highly unlikely on a detailedtechnical issue. For example, under Clause 8(4)(g), there would need to be a referendum on whether an EUcarbon tax should be adopted by a special legislative procedure or the ordinary legislative procedure—whichseems faintly absurd to me, and will no doubt be seen as absurd by large sections of the British press and public!

15. As a result, I expect one of two likely outcomes if the bill is passed with these clauses unamended. First,if a government is in favour of supporting an EU decision on one of the issues listed in Clauses 4 and 6 but isfearful of a referendum, then it would not be too difficult for the government to amend the particular sub-clause, for example to move the issue from Clause 6 to Clause 7. This might provoke some consternation inthe press and debate in the Commons. But, given the low salience of many of these provisions, very few peoplewould pay attention to any such move. If this scenario is likely, then the other member states will assume thatthe provisions in Clauses 4 and 6 are not credible, and so can safely ignore any threats from the UK. Incontrast, if a two-thirds majority is required in the House of Commons, this would be a credible hurdle whichwould be difficult for a British government to obtain, and so would strengthen the hand of British negotiators.



16. Second, however, if a British government is unwilling or unable to make such ad hoc changes to theact, and so is forced to oppose any EU decisions on these issues rather than negotiate, then the other memberstates will start to think of creative ways to move forward without the UK. If this happens, Britain’s influencein negotiations on a wide range of issues will be reduced, as the other member states start to use the “enhancedcooperation” provisions in the treaty. Over time this would lead to Britain gradually becoming semi-detachedfrom the EU. This outcome might be one of the underlying intentions in the bill. However, if this is an implicitaim, it should be stated explicitly by the government and debated more widely. In time, a semi-detachedstatus—as in the current relationship between Norway and the EU—is probably not stable, and at some pointBritain will face the undesirable choice between leaving the EU or signing up to be a full member of anorganisation which has been shaped by others without much input from the UK.

17. Finally, there are two issues that are largely absent in the bill. First, it does not make sense to establishthat EU enlargement does not require a referendum or even an act of parliament, as currently set out in Clause4(4)(c). It is inconsistent to argue that relatively minor EU decisions are of a quasi-constitutional nature, andso require a referendum or an act of parliament or both, yet the accession of any member state to the EU doesnot have any constitutional implications for the powers of the UK. Given the rules in the Lisbon Treaty onqualified-majority voting, and how they will operate after 2014 and 2017, the accession of every member statewill have a significant affect on relative bargaining power in the Council. And, the larger the member state,the bigger the implications. For example, if Turkey joined the EU, the bargaining power of the United Kingdomas a proportion of total decision-making power in the Council, and the ability of the UK to form a blockingminority against a qualified-majority, would drop considerably. So, if the principle that any EU change thathas constitutional implications should require an additional check of some kind on the decision-making powerof our officials and ministers in Brussels, then the accession of any new member state should either be includedin Clause 6(1) or in Clause 7(2).

18. The second issue which is missing from the bill relates to the way British officials and ministers negotiatein COREPER and the Council, respectively. Despite some improvement in access to documents andtransparency, COREPER and the Council remain highly secretive institutions. In particular, in contrast to theEuropean Parliament, there is not full public access to all legislative documents in the Council. For example,under the new rules of procedure in the Council, governments are required to “co-sponsor” amendments todraft Directives and draft Regulations. The texts of these amendments and which governments have co-signedwhich amendments are not publicly available. The only texts that are available are the draft texts from theCommission, the proposals from the Council Presidency, and the agreed positions of the ministers (such as theCommon Position at first reading under the ordinary legislative procedure). This is completely unacceptablefrom the point of view of a supposedly democratic legislature. I would recommend that the bill contain aprovision that requires that the House of Commons has access to every draft text, amendment, opinion, andposition paper relating to every legislative dossier in the Council which is seen by British officials in COREPERor British ministers in Council meetings. All such documents in the European Parliament are fully available,usually on the Parliament’s website, and I see no reason why this should not also be the case for the Councilwhen it is acting in a legislative capacity. For more information on this particular issue, I refer the committeeto the written evidence I gave to the European Union Committee of the House of Lords on the Implications ofCodecision for National Parliamentary Scrutiny, on 12 May 2009.

19. In sum, I welcome the EU bill as an attempt to reconcile de facto European economic and politicalintegration with British constitutional practices, and to increase the accountability of the actions of our officialsin Brussels. However, I fear that if the bill is enacted in its current form, the practical result will be either:

(1) that the clauses that require a referendum on individual issues will not be regarded by our ministersor the other EU governments as credible constraints, or

(2) that these provisions force our ministers to the sidelines on a wide range of issues, and so weaken ourbargaining positions and ultimately lead to our detachment from the EU. I regard either of theseoutcomes as highly undesirable. I would recommend replacing the referendum requirements underClauses 4 and 6 with a two-thirds majority requirement in the Commons, which would be a credibleconstraint (and so increase the accountability of our ministers when in Brussels), and would at thesame time strengthen our bargaining positions on many issues in the EU.

December 2010

Written evidence from Professor Ken Minogue, Professor Emeritus at the Department of Government,London School of Economics and Political Science

1. I am concerned primarily with Article 18, which reaffirms the sovereignty of the British Parliament. Itseems to be clear from the submissions of constitutional lawyers that the 1972 Act by which Britain joined theEuropean Economic Community (as it then was) did not in itself change the British constitution. Parliamentretains the right to repeal that Act and to repudiate any Treaty obligations it feels have become unsuitable toBritish interests, those interests being understood in the widest sense. At the same time, there is veryconsiderable discontent in Britain about the consequences of our membership of the European Union. Theproblem to which the Bill responds is thus not legal, but political.



2. Let me observe about parliamentary sovereignty, however, that it emerged during the Tudor period inresponse to a situation in which society had become so “legalised” as to limit the possibilities of various kindsof enterprise that were emerging in a vigorous and inventive society. In other words, the point of nationalsovereignty as it became an emerging feature of a modern state was to enable the English to repeal restrictionscoming to be regarded as oppressive. England found itself saddled, if I may put it this way, with a kind ofmediaeval “aquis”, and sought to be liberated from it. The legislative power of Parliament, hitherto usedsparingly, came now to be used for the important task of removing laws without having to violate them. Thedevelopment of this capacity of the King in Parliament led on to the 1688 settlement and much that madeEngland a recognised model of a free country.

3. In the course of the twentieth century, British democracy as expressed in the sovereignty of parliamenthas become extensively restricted by the emergence of a broad movement seeking to universalise a set ofvirtues and desirabilities that had long been established in European states. These virtues and desirabilities weregenerally presented as “rights”—sometimes “human”, sometimes “universal” or (according to one philosophicaldoctrine “natural”). We might call this the globalisation of virtue, and the movement to develop and extend itmight be called “internationalism.” On which development, two observations should be made:

(a) The codification of the moral life of modern European states as a set of abstract rights is clearly avulgarisation, because it omits other vital elements of the way we live, particularly duties andobligations, and it has no place for the essential role in moral thinking of such concepts as integrityand common sense—or indeed for important moral sentiments such as gratitude. There is no doubtthat the diffusion of such rights to countries afflicted with despotic and oppressive governments abroadaugments the happiness of the world. There is equally no doubt that the idea of rights diminishes ourown conception of proper conduct by reducing it to mere obedience to rules—a moral confusion thathas recently surfaced as shared by some members of the House of Commons.

(b) The second observation is that internationalism in morality is an ideal promoting the interests of whathas often been analysed as a “new class” in European societies—a class tending to include politicians,lawyers, academics, actors, journalists, charitable workers and others, one of whose notable featuresis that their relation to the world of commerce is indirect. Internationalism is an ideal, and has therhetorical advantage of seeming to be morally superior to the mere interests of economic enterprises.It has, however, interests of its own, and these have been extensively analysed in the literature ofpublic choice.34

4. Internationalism is most commonly expressed in governments signing up to grandiose declarations ofrights, such as the European Convention Relating to the Status of Refugees (1951) or the Universal Declarationof Human Rights (1948). In such declarations we find abstract desirabilities which—were they actually to beimplemented—would impede some of the nastiness of despotic rulers. But these abstractions are also designedas guides for conduct in the European societies from which these ideals originally came. Their interpretationopens up extensive scope for extending the power of courts and judges. In this legal structure, there is no placefor what a democratic electorate might want as such an electorate responds to the problems of terrorism,mass migration, and other difficult issue. Equally, international moral declarations have no place for repeal oramendment: who would want to repeal virtue? The eccentric consequence is that over much of the world, theserights have been ignored by despotic regimes, while their most evident use in modern Western regimes hasbeen to extend the rights of citizens to convicts, illegal refugees who have managed to get into Britain, and toothers on the margins of British life. The recent imposition on Britain of voting rights for convicts may serveas one example of many. In other words, the rights of man have, as it were, been assimilated to what Burkedistinguished as the rights of Englishmen in a way that cannot be challenged by the democracy. It may also beobserved that the abstract character of these rights might make them universal, above circumstances. It doesnot. A refugee in 1951 was very different from a refugee in the twenty first century.

5. I cite internationalism as a background to the supranationalism of the European Union, which I take tobe part of the same movement. Both have the consequence of replacing the power of national sovereignty bythat of nationally composite bodies. In 1972 we became members of the European Economic Community, amove so far reaching as rightly to be thought to require the validation of a referendum. That referendum in1975 strongly supported membership (I was one of those who voted for it). Since then, however, the EEC hasbeen transformed by a steady accretion of powers limiting the freedom of national states, culminating for themoment in the Treaty of Lisbon. Unease about this continuing legislative encroachment on the discretion ofour democratic Parliament has increased steadily in Britain, and polling data tell us that a clear majority ofBritons regard the burdens of the Union as not worth its benefits. They would favour a return of Westminsterrule rather than the continuing drift of power to Brussels. This sentiment is powerful enough for Britishpoliticians to make gestures of national independence, and to promise popular consultation, even teasing theelectors occasionally with promises of future referenda. Those promises have not been fulfilled. Governmentsseem to have been so seduced by the charms of international “clubbability” that they have continued to agreeto measures that erode British autonomy, the most dramatic case being the prime minister of the time, GordonBrown, “slinking off” to Lisbon to sign the Treaty alone, and inconspicuously. The current version of the driftof power arises from the EU demand for more money from the national states.34 Thus Professor Hix cites a Eurobarometer survey of opinion taken in 1996: Across the Union, “Whereas only 48 percent of the

general public supported EU membership at that time, 94 per cent of the elites supported it.” Simon Hix, What’s Wrong withthe European Union & How to Fix It, Polity, 2008, pp.59–60.



6. One aspect of the problem is encapsulated by the character of the European Parliament. The essentialcharacter of parliaments is that they must balance deliberation (about justice in the legal sense, and socialorder) with expressing the will of the electorate. The European Parliament lacks this second feature, becauseits electorate consists of a set of national cultures none of which is large enough to influence the vote, so thatthis Parliament is disconnected from interests and given to extensive judgements on ideal conditions of sociallife—such as what ought to be the right number of hours at work governments should permit. The EUparliament thus lacks one essential feature of democracy—a demos. It cannot articulate a real interest. Instead,it become an assembly at the mercy of bright ideas which it seeks to impose on the luckless members of theUnion—ideal working hours, paternity or maternity leave, and other such supposed ideal conditions that takeno account of the circumstances of the member states. Here is the situation in which we as British subjectsfind our lives being regulated by a set of foreigners whom we cannot make accountable. Our representativesoften tease us with promises of refusing to be overborne; they continue to betray us, which is why our problemis political rather than legal.

7. One version of the problem has recently been encapsulated in the case of Learco Chindamo who hadserved a long period of imprisonment for the murder of the headmaster Stephen Lawrence. The Governmentand the people of Britain seem to have long been as one in supporting the policy of expelling from the countryforeigners released from prison for committing a criminal offence. It turned out, however, that Chindamo couldnot be expelled on his release in 2007. The reason is that both aspects of what I have called “internationalism”have made this policy unworkable. Chindamo could not be deported, it turned out, because returning him tohis native Italy would haves violated his human right to a family life. David Cameron for the Oppositionexpressed national feeling at that time by criticising the Human Rights Act as absurdly tying the hands of theGovernment. He refrained, however, from facing the parallel problem that the rules of free movement withinthe European Union also made expelling Chindamo from the country no less impossible than the judgement interms of human rights.

8. The obfuscation necessity for advancing this stealthy project results from its widespread unpopularity. Itmust be marginalised so that it does not feature prominently among the normal controversies of our politicallife. This kind of obfuscation has recently been illustrated by British involvement in stabilising the finances ofthe Union during the current crisis of the Euro. It was reported that the Chancellor of the Exchequer in theLabour Government, Alasdair Darling, had committed Britain to participating in obligations to contributefinancial support for European states in crisis, and that he had done this after that Government had lost theelection. It was also reported in the press, however, that the new Government must have approved this decision.If the responsibility should lie with Darling, then it would appear to be constitutionally irregular. If all partiesapproved, the question is why the matter was not explicitly discussed in Parliament. It involves, after all, largesums of public money. The current Chancellor’s defence of the large payment to the Republic of Ireland hasbeen presented in terms not of EU arrangements but of our economic involvement with Ireland. I do not atpresent know the truth of this matter, but the lack of clarity in reports about it illustrates the kind of problemBritish electors face.

9. The problem lies, then, not in the constitutionality of our sovereignty within the European Union, but inthe honesty with which obligations and commitments to European regulation are discussed and decided. Theproblem, in other words, is political. A large gap has opened up between an educated elite whose project is toperfect the world by bringing it under a single legal regime, on the one hand, and national electorates on theother. Such electorates commonly take a different moral line from that advanced under an internationalist legalorder dominated by the emphasis on rights. Rhetorically, internationalism has all the best tunes, because thenational judgements of people can plausibly be dismissed by the use of such pejoratives as “populism” (whichmeans democracy one does not like) or as resulting from ignorance and prejudice. Internationalism, by contrast,has colonised the vocabulary of virtue, reason and harmony. The reality, however, is that we have here amovement so stealthy in its eagerness to transfer power from Britain to the European Union that it has theaspect of a slow motion coup d’etat. That is why the clarifications of the European Bill are significant.

December 2010

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Oral evidenceTaken before the European Scrutiny Committee

on Monday 22 November 2010

Members present:

Mr William Cash (Chair)

Mr James ClappisonMichael ConnartyNia GriffithChris Heaton-HarrisKelvin Hopkins

________________

Examination of Witness

Witness: Professor Paul Craig, Professor in English Law, St John’s College, Oxford, gave evidence.

Q1 Chair: Welcome to the Committee.Professor Craig: Thank you very much for invitingme.

Q2 Chair: It is a great pleasure to have you here. Iam just going to make a brief opening statement, if Imay, for the benefit of putting on the record what weare about.The coalition Government have introduced theEuropean Union Bill. This is the first time, since theEuropean Scrutiny Committee was established in1972 under Standing Orders, that the Committee hasformally examined a Government European Bill,either before Second Reading or at all. The Bill is ofgreat constitutional importance. It is about how we aregoverned, by whom and by what democratic consent.It is on a par with the European Communities Act1972 itself in many respects. It follows the LisbonTreaty, which in its turn followed the constitutionaltreaty, which was aborted when rejected byreferendums in France and the Netherlands. The Billdeals with the holding of referendums and othermatters, as well as, in clause 18, the issue ofparliamentary sovereignty.The Government have provided their own explanatorynotes to accompany the Bill, which contain certainassertions. In this inquiry, we shall examine thoseassertions and report on them to the House ofCommons. This is a critical time, as all can see, in thepolitical, economic and constitutional situation withinthe EU and in the relationship between the UnitedKingdom and the European Union. All of those affectthe daily lives of the electorate in an increasing way.Indeed, as we speak, the Chancellor of the Exchequeris making a statement regarding financial assistanceto Ireland.The European Scrutiny Committee is an all-partyCommittee, with functions under Standing Order No.143 to examine European documents containingmatters of legal and political importance, and to reportthem to the House. We consider more than 1,000documents each year, recommending thoseappropriate for debate and, through what is called thescrutiny reserve, imposing a restriction on Ministersvoting in the Council of Ministers on directives andrecommendations until the debate we have

Chris KellyPenny MordauntStephen PhillipsJacob Rees-Mogg

recommended has taken place. All of that inducesnegotiation and discussions between the Government,other member states and the European Commission,and changes in the wording of directives, as part ofthe continuing process. We also have functions inrelation to recommending debate and the potentialdiscontinuance of proposals where we indicate thatthey breach the rules on subsidiarity; that is, that inour view the proposals should not be put through atEU level.The Government have agreed to give evidence to theCommittee, with regard to the contents of the Bill,before it is put to the House on Second Reading, asto the principle, the scope and the title of the Bill. Weanticipate Second Reading in about three weeks’ time.Despite our representations, which we made verystrongly, the Government have refused—unreasonably, in our view—to delay Second Reading.They have insisted that it takes place and therefore theprinciple of the Bill will be decided within four weeksof its introduction on 11 November. We have thereforedecided to take immediate evidence on clause 18,which relates to parliamentary sovereignty, and toreport our conclusions to the House on that beforeSecond Reading. We shall then report on thereferendum lock and other matters before theCommittee stage of the Bill is taken.Thus, we have decided to seek and take evidence onthe Bill as a whole, under the powers given to usunder Standing Orders, from the public and fromwitnesses other than from the Government, and fromthose witnesses who have special knowledge but verydifferent opinions regarding matters such as the UKconstitutional implications of the Bill; the influenceand jurisdiction of the judiciary on the interpretationof both constitutional and European law; and theassertions of the European Court of Justice as tojurisdiction over the constitution of the UnitedKingdom, and therefore over the WestminsterParliament. All those issues greatly affect the dailylives of the electorate, as well as the workings of theWestminster Parliament, the Government and thecourts. There are undoubted and profound differencesof opinion, not only in the public mind but at thehighest level among the judiciary and former membersof the judiciary, constitutional lawyers, Members of

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22 November 2010 Professor Paul Craig

Parliament, Parliament as a whole, commentators andthe media regarding the European question and itseffect on the United Kingdom and its people.We urge that, given the responsibilities of the BBC inrelation to its charter, the parliamentary channel andthe Democracy Live website provide the public andthe electorate with the greatest possible opportunity tohear and view our proceedings. These are matters ofpublic policy under the BBC charter and affect thelicence holder directly because the Bill concerns theirdaily lives. Similar considerations arise in relation tothe application of criteria under the Broadcasting Actto the commercial broadcasters, and we hope that therest of the media will also take note.Our first witness today is Professor Paul Craig,professor of law at Oxford university and of St John’scollege, Oxford. Welcome, Professor—it’s a greatpleasure to have you here. Thank you very much forsending us your evidence (REF), which we receivedthis morning. My first question is, in your view whatis the status of Declaration 17 on the primacy of EUlaw? Is it to be regarded as politically or legallybinding on member states or both? And, canDeclaration 17 bind the Supreme Court of the UnitedKingdom or, alternatively, be used by it as an aid tointerpretation?Professor Craig: Thank you very much indeed for thequestion, and I thank members of the Committee forinviting me to be here.Declaration 17 was a watered-down version of theclause that appeared in the constitutional treaty. Priorto the constitutional treaty, and indeed since then,there has never been a supremacy clause embodyingin hard law the principle that EU law has supremacyover national law. That was embodied in theconstitutional treaty; it was one of the things that wasdecided to be dropped from the constitutional treatywhen the Lisbon Treaty was reformulated. Instead, wehad Declaration 17.In brief, my view is that Declaration 17 will changenothing in terms of the case law as it existed before,either by the European Court of Justice or theresponses of the national courts. The ECJ willcontinue to affirm that it has primacy over all nationallaw, including national constitutional law. It has takenthat position ever since the InternationaleHandelsgesellschaft case in the 1970s, and it has neverreally shifted from that position, so, in its view, all EUlaw takes precedence over all national law. Nonational court has accepted the full impact of thatassertion of authority by the ECJ. Pretty much allnational courts, to varying degrees, have placedqualifications on the assertion or the arrogation ofsupremacy of the ECJ, and, to put it more specifically,pretty much all national courts place reservations onthe extent to which the ECJ’s jurisprudence and EUlaw will take precedence over a national constitutionand/or fundamental rights.The Declaration is obviously weaker than thecorresponding provision would have been in theconstitutional treaty because it is only a Declaration,and therefore not part of the main body of the treaty.I do not think that the Supreme Court in the UnitedKingdom will feel compelled to change its position asexpressed in Factortame and the Equal Opportunities

Commission case: in so far as it has accepted thesupremacy—or primacy—of Community law, I thinkthat it will continue to do so. However, I do not thinkit will feel compelled to accept the supremacy orprimacy of EU law all the way down in that sense. Ido not think there is anything in Declaration 17 thatwill compel the Supreme Court in the UnitedKingdom to accept that the primacy of EU law overnational law is unqualified in the sense that it takesprecedence over national constitutional precepts inthe UK.Chair: Thank you very much indeed for that answer.Kelvin Hopkins has the next question.

Q3 Kelvin Hopkins: Should clause 18 of theEuropean Union Bill refer to section 3(1) of theEuropean Communities Act, as well as section 2(1)?What weight do you think the Court of Justice of theEU would attach to clause 18?Professor Craig: Thank you for that question. As Iindicated in my written submission, viewed from oneperspective clause 18 is entirely un-novel and entirelytraditional. It simply affirms the fact that EU law takeseffect within the national constitutional order in theUK by and through an Act of Parliament. Undertraditional dualist theory in the United Kingdom, astatute is a precondition for any treaty to be acceptedinto the national constitutional order.I read the reference to section 2(1) in clause 18 simplyto be a reference to a shorthand way of referring tothe body of community rights, liabilities, powers andso on, which are part of EU law and which then takeeffect in UK law. In that sense, that is the rationale,as I saw it, for the shorthand reference to section 2(1).I am not sure that anything in particular would begained by adding section 3(1) to that. Clause 18 isnot, in my view, or in the view of the framers of thisBill, a primacy clause—see paragraph 109 of theexplanatory memorandum. It is not a clause about theprimacy of EU law, therefore I don’t think there is anyparticular reason for the inclusion of section 3(1) inclause 18, nor do I think that the European Court ofJustice would in any particular way draw oneconclusion or another from its absence.Chair: That is very clear. Thank you very much.Would Penny Mordaunt like to ask the next twoquestions?

Q4 Penny Mordaunt: First, has the question ofwhether EU law has supremacy over the constitutionaldoctrine of parliamentary sovereignty been finallyresolved by the decision of the divisional court inThoburn? Secondly, can we be sure that EU law isonly directly effective and applicable in national lawbecause of the European Communities Act?Professor Craig: Thank you very much for those twoquestions. We could take a long time on both of them,but as we have only a limited amount of time, I willbe as brief as possible.

Q5 Chair: Lord Justice Laws is coming to thisCommittee, so he will be able to give his own viewof things.1

1 Lord Justice Laws is no longer to give evidence.

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Professor Craig: I have the greatest respect for LordJustice Laws.On the first question, my reading of Thoburn—I don’tthink this at all unorthodox or heterodox—is asfollows: what Lord Justice Laws said in Thoburn wasthat the constitutional impact of EU law on nationallaw was not going to be dictated top-down by theEuropean Court of Justice on our courts. The nub ofhis thesis was that whatever impact EU law had withinthe UK was going to be decided by UK constitutionalprecepts and by UK courts. That was not at allinconsistent in and of itself with the House of Lordsdecisions in Factortame and the Equal OpportunitiesCommission case. So it is for our courts to decidewhat they believe to be the impact of EU law withinour national constitutional order. That is what I thinkLord Justice Laws was saying, and rightly so, in theThoburn case.Logically, that of course means that it is still opento our national courts, within the framework of thatreasoning, to, in effect, go in a number of differentdirections while staying within the framework of thatreasoning. In other words one could, at one end of thescale, postulate a situation in which a national court—perfectly consistently with the reasoning of LordJustice Laws in the Thoburn case—might well saythat the impact of the EU law on national law wasvery far-reaching indeed, albeit decided and finalisedby the UK courts in accordance with nationalconstitutional precepts. They could also take the sameconceptual foundation and reach rather more limitedconclusions.One way of looking at this, or a way of testing it isthat, as I have mentioned, Lord Justice Laws sawnothing inconsistent between his view of theconceptual foundation of EU law in national law andthe decisions of the superior courts in the Factortamecase and the Equal Opportunities Commission case—indeed he was, of course, bound by that jurisprudence.If you put the House of Lords decisions in EOC andFactortame together with Thoburn, what you get, Ithink, is the following position: a position in whichthe constitutional reception of EU law into nationallaw is dictated by and dependent upon ourconstitutional precepts of sovereignty, as interpretedby our courts. Okay? You then reason back up toFactortame and the EOC, and what you see is ourcourts, reasoning from their own constitutionalprecepts of sovereignty, reaching a conclusion underwhich—subject to the possibility of an express Act ofParliament stating the contrary—in terms ofsubstantive law, when there is a clash between EU lawand national law, EU law should, prima facie, takesupremacy. That’s the answer to question number one.Could you remind me of question number two?

Q6 Penny Mordaunt: It is about whether we can besure that EU law is only directly effective andapplicable in national law because of the EuropeanCommunities Act 1972.Professor Craig: Okay. Thank you very much. In theUK, the European Communities Act, in accord withthe traditional dualist position, is the foundation forany reception of any EU law within our national legalorder. So the bottom line is that if the European

Communities Act of ’72 had never been enacted, wewould never have been part of the EEC, as it thenwas, or the EU, as it is now, and in that sense no EUlaw would be part of our constitutional legal order.Okay? That is stage one of the reasoning.However, it also has to be recognised that when wesigned the European Communities Act—and theframers of the European Communities Act in 1972were fully cognisant of this—it was recognised thatparts of EU law were regarded as either directlyapplicable, or directly effective. That meant that,certainly in terms of the phrase “directly applicable,”what this connotes as a term of art in EU law is thata regulation, once made, is effective within eachnational legal order without more.If you want a metaphor, that means that once it ismade in, or by, the EU, it parachutes automaticallyinto 27 legal systems at the same time, without theneed for any separate Act of national incorporation orlegislation in the national order. When we signed theEuropean Communities Act, that was already fullyclear, and section 2(1) expressly makes provision forthat.So, yes; the European Communities Act is thefoundation for us becoming part of the EU and for EUlaw to become part of national law. However, it hasnever been the case that there is a need for a separateAct of a UK Parliament, either primary or secondary,in order to validate and legitimate the reception ofeach regulation of EU law into national law. That hasnever been the case and indeed, if we were to takethat position, we would, as I intimated in the paper,be in persistent and systematic breach of EU law.Nor, I should say, is there any need, pursuant to theEuropean Communities Act, for every directlyeffective norm—whether treaty, article, regulation,decision or directive—of EU law to be separatelylegitimated by an Act of Parliament or statutoryinstrument in the UK. We have never taken thatposition, and the European Communities Act does notmandate that position. Once again, if we were to takethat position, or if clause 18 were to be read in thatway, it would be contrary to EU law.

Q7 Jacob Rees-Mogg: How do you think the debatebetween the absolute legislative supremacy ofParliament on the one hand, and parliamentarysovereignty being a construct of the common lawcontrolled by judges on the other, should be resolved?The second part of my question is: who do you thinkshould resolve it, Parliament or the Supreme Court?In other words, where do you think ultimate authoritynow rests in our constitution?Professor Craig: Again, a very good question; thankyou very much indeed. That is a question on whichone could have an academic seminar going on for aconsiderable period of time. Both parts of the questionare linked, so I will treat them together.The traditional theory of sovereignty under whichParliament can do anything it wishes, procedurally orsubstantively, save for one limitation—that it cannotbind its successors—is a construct ultimately of thecommon law. It can also be regarded as the ultimatelegal principle or the Grundnorm at the top of thesystem, in the sense that it is the principle to which




all other principles can be traced and nothing can goback further beyond it. That is why it is often said inthe literature that the ultimate legal principle isultimately based on social acceptance and notanything further than that. Ultimate social acceptancemeans ultimate acceptance by the players in the game,which include the courts and Parliament.If a statute were to affirm the principle ofparliamentary sovereignty in the manner in which Ihave just set it out, meaning that Parliament issovereign—it can do anything it likes substantively orprocedurally, save that it cannot bind its successors—the logical point that would be jumped on by lawyers,constitutional lawyers and the like is that theParliament would be founding or basing itself on aprinciple that is logically prior to it.In other words, the very idea that statutes are theultimate source of law, and that Parliament can doanything it likes except bind its successors, is in asense logically prior to any particular statute. So astatute might wish or try to affirm that principle, butit would not be constitutive of that principle; it wouldsimply be declaratory of it. It could not be regardedas constitutive of it.If you had a situation in which that principle wereever tested—let’s take an example. It could be in theEU context or it might not be in the EU context, butlet’s just take an example to sharpen this up so thatwe see it. You might get a situation, although we hopeit never happens, in which a Parliament—I’m sure notthis one—might pass a piece of legislation that isregarded as fundamentally violative of human rights.It is challenged under the Human Rights Act 1998,and the court issues a declaration of incompatibility.Parliament does not accept it; Parliament does nothave to accept it under the Human Rights Act.The issue then becomes what the court should do.Under the traditional precept of parliamentarysovereignty, the court might back off and say thatParliament has done what it is entitled to do underthe Human Rights Act, and it has decided in thosecircumstances to exercise its ultimate sovereignpower. It is not beyond peradventure that in thosecircumstances the courts might say, depending on thenature of the legislation that had been affirmed byParliament, “I’m sorry, we are not going to recogniseor apply that.” Certain dicta by the courts over timehave suggested that. If you had a situation such asthat, you would have a stand-off between the courtsand Parliament, and which way it was resolved woulddepend to some extent on who caved in first.

Q8 Chair: Can I jump in there and remind you ofthe article you wrote in “The Changing Constitution”in 2007? In that, you said that your preferred view,relating to the court’s jurisprudence, is to regarddecisions about supremacy as being, “derived fromnormative arguments of legal principle, the content ofwhich can and will vary across time”.You went on to say that you agree with ProfessorAllan of Cambridge university, who is coming to seeus this week. You go on to say, “On this view there isno a priori inexorable reason why Parliament merelybecause of its very existence must be regarded aslegally omnipotent.”

I wonder why that did not appear in the evidence wegot today. Would you like to enlarge on that? Becauseif Allan agrees with you, and you agree with him onthis, it raises an important question aboutparliamentary supremacy.Professor Craig: Thank you. It is always chasteningto have one’s own views quoted back at oneself insuch circumstances. I haven’t changed my mind overthat and I stick by it. To make it clear, I haven’t raisedthat issue in response to any of the questions,because—perhaps it was my mistake—I hadn’t fullyrealised that any of the questions directly addressedthat issue. I haven’t changed my mind about that issueat all.If I could amplify what I meant by that, it is worthdoing so in two different respects. One: in terms ofprinciple, all power requires justification. The morepower you want, the better the justification has to be.That is the simple foundation for the quote that youread. The idea that an institution, merely because ofits existence, demands or warrants omniscient powershas always seemed to me a strange one. There has tobe a normative argument to justify that ascription ofpower. There may be various normative argumentsthat you can put, but then the terrain of the argumentbecomes precisely that—the normative argument. It isnot just because Parliament has passed a statute, butbecause, for example, one believes—this would be thesketch of the modern normative argument—thatbecause Parliament has been elected on an extendedand full franchise for nearly 100 years, because of thatelectoral mandate, that is the conceptual foundationfor the unlimited sovereign power. You might alsoargue that if any institution, such as the court, tried tolimit that power, that institution would have a lesserlegitimacy than Parliament itself. Therefore, thereshould be no such limits. That would be the kind ofargument.There are many counter-arguments that you can put tothem. All I meant in that quotation was myfundamental starting point: power requiresjustification. The greater the power you as a person orinstitution want, the better the justification had betterbe.The second part, which is linked, is that in historicalterms, the very idea, legally or historically, thatParliament was omniscient—omnipotent notomniscient—Chair: Not “omniscient”.Professor Craig: Sorry, Freudian slip. The very ideathat Parliament was omnipotent in the way that istaken in the current formulation of the supremacyprinciple, was not historically necessarily taken forgranted and, in so far as defences or arguments wereput to justify that position, they were put in terms ofprinciple. That has largely been forgotten in some ofthe more modern scholarship. For example, if youlook at the great constitutional writers from previousgenerations; if you look at Blackstone or Dicey, theydidn’t have cases or case law on which to justify thenotion of parliamentary supremacy. They justifiedparliamentary supremacy, albeit on differingarguments of normative principle, which they feltjustified the conclusion that Parliament was, andindeed should be, omnipotent. For example, there is




Blackstone’s famous quote—everyone knowsBlackstone’s famous quote, but nobody reads the 25pages that come before it. Blackstone makes itabsolutely crystal clear—this is not Craig readingsomething into it—that his conclusion, that Parliamentis indeed omnipotent, is dependent upon Parliamentworking on and in the way in which he has argued inthe previous 25 pages. That is very interesting,because in those previous 25 pages he describes aParliament in which you have kings, Lords andCommons working on a principle of institutionalbalance so that the three different constituent parts ofParliament—kings, Lords and Commons—counterbalance each other in terms of power andauthority. Blackstone went out of his way to make itexpressly clear, once again, that if one constituent partof that legislature became dominant over the othertwo, it might be very dangerous and lead to anelement of tyranny.Chair: Of course, in the 1620s Coke himself wasremoved by Parliament for daring to suggest that thecourts had supremacy over Parliament.

Q9 Michael Connarty: We are going back into someof my worst nightmares when I studied governmentand political systems. That was very interesting, but Iwould like to go back to the practicalities of what weare looking at today, because it is very important forus to take evidence that is relevant to the advice thatwe give to the Bill Committee.You say in your evidence that, “Clause 18 is not asovereignty clause in that it tells us nothing as suchabout the relation between EU law and national lawin the event of a clash between the two.” Will clause18 change the way that the courts interpret their dutyto review legislation in the light of EU law under theEuropean Communities Act 1972? Secondly, you goon to say that, “Whatever meaning is given to Clause18 will apply to future Acts of Parliament unless thereis something express to indicate the contrary.” Ifclause 18 does not effect any change—however oneinterprets “whatever meaning”—does it have asymbolic value? If so, what is that value?Professor Craig: Thank you very much indeed for thequestions. On any plausible reading, clause 18 cannot,in my view, be regarded as a primacy clause in thesense that it cannot be read as purporting to determineprimacy between EU law and UK law in the event ofa clash.

Q10 Michael Connarty: So the answer to that is no?Professor Craig: It is not a primacy clause and, inparagraph 1.09, the explanatory memorandumexpressly disavows the idea that it is a primacy clause.In fact, paragraph 1.09 expressly states that in theview of the Bill’s framers, nothing in clause 18 willaffect the pre-existing law on primacy. So my answerto your first point is no, it is not a primacy clause; andmy answer to your second point is yes, it has asymbolic importance in affirming that in the absenceof any national law, EU law cannot apply in the UK.As I mentioned on page 1, there are only twoconceivable situations that I can imagine in which thatcould happen. You are absolutely right to say that weshould focus on practicalities and not on abstract

theory, but that is what I was trying to do in answeringthose questions. I can only think of two situations inwhich that symbolic issue would be a practical reality.One is that we completely repeal the ECA inpreparation for exit under Article 50 of the TEU, butthere is a gap between the two. There may well be agap, because, if you read Article 50 of the TEU, it isquite clear that it may take two years to negotiate exit,so there may be a real gap of time. In thosecircumstances, you might have a situation in whichsomeone wants to argue that EU law continues tooperate in the interim, but if there is no ECA, therewouldn’t be any statutory basis for EU law to applyin the UK at that time.The other scenario that I thought of—I couldn’t thinkof any other—is, falling short of that where thissymbolic clause might be of practical importance, inthe situation where we stay in, but we attempt toderogate. If we attempt to derogate—by derogate Imean to pass an Act that says expressly andunequivocally that in the EU Act of 2014, the UKexpressly and unequivocally states that it is not goingto follow directive xyz of the year 2013, and itexpressly excludes the ECA as well—in thosecircumstances you could have a situation in which,although undoubtedly in breach of EU law, we wouldbe within the EU, but in terms of that subject matterarea, there would be no foundation in national law forEU law to apply in that area.Those are the only two practical circumstances I cansee in which the symbolic value would have hadpractical importance.

Q11 Michael Connarty: Would you say that it wouldlikely be a dilemma, because, in my judgment, twono’s would mean that it was not necessary? We allknow this; it’s just a re-statement. Is it necessary?How would it become sufficient if we were to advisethe Bill Committee to make it so? How would wemake it sufficient to become a sovereignty clause?Professor Craig: Can I take the second part of thatfirst? I think the second part actually, in many ways,answers the first part.It depends what you mean by a true sovereigntyclause. I have to ask you a question back. Do youmean a sovereignty clause as primacy, or do you meana sovereignty clause that simply affirms or asserts theidea that Parliament can do whatever it wishes insubstance and in form, save that it cannot bind itssuccessors?If I could just have 30 seconds, it seems to me thatwhen I was reading this and the explanatorymemorandum and the questions posed, people aretalking about a sovereignty clause here, and actuallyit seems to me that the very idea of sovereignty clausecan have more than one meaning. I think there is adanger of eliding the different meanings that the termsovereignty clause can bear. One can disaggregate atleast three different senses in which one might use theterm sovereignty clause.The parent sovereignty clause—the mother or fatherof all sovereignty clauses if you wish to put it in thatway—is the idea that Parliament can do anything itwishes in substantive and formal terms, save that it




cannot bind its successors. That is a traditional parentsovereignty clause.The sovereignty clause that we have in clause 18 iswhat I call sovereignty as dualism. It is simplyaffirming the idea that Parliament is sovereign in thesense that no treaty that is negotiated by the Executivecan take effect within the UK unless and until it hasbeen transformed or adopted by an Act of Parliament.But that is sovereignty as dualism. You can call it asovereignty clause, but it is different from the parentidea of sovereignty.A third sense of sovereignty is sovereignty as primacy.In my view, clause 18 is sovereignty as dualism. Itsays nothing about sovereignty as primacy, and itdoesn’t purport to reiterate, or iterate, the parent ideaof sovereignty. There is no harm in having clause 18if you wish it as a symbolic reaffirmation of thecommon law principle—it is a common lawprinciple—that a statute has no impact in the UnitedKingdom unless or until it is embodied in an Act ofParliament.Michael Connarty: That is a perfect answer. Thankyou.

Q12 Mr Clappison: Thank you for those answersand please forgive me if my question is a littleimprecise. Michael Connarty asked you in broadterms whether this made a difference and you saidonly in two respects: if the United Kingdom were toexit from European Union or if it were to seek toderogate from a particular piece of legislation, neitherof which the Government tell us they intend to do. Ifit is only in those circumstances that it would make adifference, is your evidence to us that otherwise itwould make no difference?Professor Craig: My evidence is that otherwise itwould make no difference.

Q13 Stephen Phillips: The unsuccessful argumenturged on the Court of Appeal in the metric martyrscase was essentially that EU law had becomeentrenched rather than merely incorporated. Thatargument has been disposed of in the Court of Appealbut it is an argument with which it would be open toan appellant to argue in the Supreme Court, wouldn’tit?Professor Craig: Correct.

Q14 Stephen Phillips: And it is an argument whichpurports to be addressed by clause 18 of the Bill.Professor Craig: On the first part of the question, Ithink the answer is undoubtedly yes. The decision inThoburn was a very well-reasoned decision, but it wasa decision of the divisional court and it could, in thatsense, be overturned or overtaken by a decision of theCourt of Appeal or the Supreme Court—so,undoubtedly, yes. On the argument of the substanceof the point, one would, of course, be hypothesisingas to whether the Court of Appeal or the SupremeCourt would be likely to overturn the reason. But, myown view is whether they did so or not—I think theywould affirm the same reasoning in Thoburn—I don’t

think it would be markedly affected by the existenceof clause 18. I do not think that clause 18 in and ofitself necessarily provides an answer to the argumentsthat were litigated and discussed in Thoburn. I thinkit would lend support to the view taken by LordJustice Laws, but I do not think the existence of clause18 would necessarily preclude somebody running thesame argument that Eleanor Sharpston ran in themetric martyrs case. She was the person who wasarguing for—as you put it—the entrenchment view.

Q15 Stephen Phillips: In order to run that argumentin the Court of Appeal or the Supreme Court and tosay that Lord Justice Laws was wrong in thedivisional court, would you also have to say thatclause 18 of the Bill, were it to become law, shouldessentially be struck down or seen as having noeffect?Professor Craig: No. That was the point I was goingto go on to. That is a very interesting question. I amnot sure that that is right; it could be taken in thatway, but it would not have to be for the followingreason. You can read clause 18 as simply saying,“This is the basis of reception of EU law into nationallaw.” There has to be a national statute through whichEU law is recognised and available in national law.Okay? Now, there is a real conceptual distinctionbetween the basis on which EU law or, indeed, anyTreaty becomes part of national law—that’s pointone—and point two: what is the primacy or hierarchyof EU law and national law once we are in thesystem? Okay? So even if clause 18 is there,somebody might well say, if a case went to theSupreme Court or the Court of Appeal: fine; clause 18affirms or reaffirms what I called in my paper, forwant of a better purpose, the principle of sovereigntyor supremacy as dualism—that the reception of EUlaw was dependent upon the existence of the statuteat UK level. But that is conceptually distinct in andof itself from the question about how, once we are inthe EU, primacy operates, and whether indeedprimacy could be accepted on the basis of the kind ofreasoning put forward by the European Court ofJustice in Costa and Van Gend en Loos.Chair: May I invite you, Stephen, to take on the nextquestions relating to Parliament passing an Act?

Q16 Stephen Phillips: Yes. I think we will take themseparately, because the first one is quite long. Were itto be the case that Parliament passed an Act thatrevoked or amended the European Communities Actand withdrew the United Kingdom from the EuropeanUnion—or part—could it be argued, on the basis ofthe obiter observations of at least three of theirlordships in the case of Jackson, that the court shoulddisapply the revoking or amending Act?Professor Craig: If Parliament expressly andunequivocally revoked the ECA—the entire ECA—with the intent of exiting the EU, and if that was doneexpressly and unequivocally, I believe that the courtswould accept it. I would think that the courts wouldsay that ultimately the political decision must be forParliament to take, and that if Parliament has




considered the matter, deliberated on it and made itabsolutely clear that it wishes to leave the EU, withthe consequence that the ECA should be repealed orrevoked, that would be a valid statute. It would berecognised and applied by the UK courts, even moreso post-Lisbon than prior, because at least post-Lisbonthere is now an express exit clause in Article 50 ofthe TFEU, which was not there before.

Q17 Chair: Can I ask a question about theamendment that Stephen referred to? The revocationor the repeal is one thing; the question of anamendment is another. After all, in McCarthys andSmith, and—with Diplock—Garland and British Rail,we have clear statements that refer not only torevocation but to amendment. Is it not thereforenecessary to answer that question about any provisionof the European Communities Act, or indeed anyprovision that arises by virtue of that Act?Professor Craig: An amendment of the EuropeanCommunities Act falling short of revocation—

Q18 Chair: That is one, indeed. The other is anyprovision that arises by virtue of the application of theEuropean Communities Act—in other words,subsidiary legislation, which may be in an Act ofParliament.Professor Craig: Can I take those in turn? To take thebigger one first—were an Act of Parliament to amendthe European Communities Act. It is difficult to beconcrete without a concrete example. Let us take as ahypothesis that it amends the European CommunitiesAct by taking out section 2(1) or section 3(1). In suchcircumstances, and in determining the legal effects ofthat Act, in analytical terms one has to disaggregatetwo different issues. First, has it done so expressly andunequivocally? If it has not done so, I think the courtwould reject the amendment, as it were, on thatground. Parliament would have to do it expresslyand unequivocally.The second part would be as follows: the questionwould be, depending on what had been amended,whether the European Communities Act—the rump ofit, or the remainder of it—could remain as a coherentstatute. That would be a question for a court todetermine. Even if there had been an expressamendment taking out section 2(1) or section 3(1), oraltering section 2(4) or section 2(2), you would thenget a consequential question arising: is the rump—what’s left—of the European Communities Act acoherent statute? That would be “coherent” in the


Witness: Professor Trevor Hartley, London School of Economics, gave evidence.

Q20 Chair: Professor Hartley, thank you very muchindeed for coming to see us this afternoon. I think thatthe best way to proceed is by asking the questions thatwe have already been through with Professor Craigand to get your view on them as well.First, what is the status of Declaration 17 on theprimacy of EU law? Is it to be regarded as politicallyor legally binding on the member states, or both? In

legal sense that it provides the foundation for usremaining in the EU, notwithstanding the part that hadbeen taken out or amended.

Q19 Mr Clappison: Following on from that and insearch of something that might make a difference insafeguarding parliamentary sovereignty, if you wereto set about drafting a clause that made a difference,how would you go about it? May I ask about onesuggestion on this? Thinking aloud here, which isprobably a dangerous thing to do, what about a clausecatering for the possibility, which you have just raisedin your evidence, of Parliament expressly stating in astatute that it is overriding a particular piece ofEuropean legislation? Catering for that possibility,what about saying that Parliament may do that inrespect of a particular piece of legislation comingfrom Europe?Professor Craig: My own view on that is that it wouldbe perfectly possible to draft a clause to that effect. Idon’t think that it would be particularly difficultlinguistically for skilled draftsmen to put down onpaper a modified form of clause 18 to that effect.Do I think that it would be desirable, legally orpolitically? If I might proffer an opinion in thatrespect, my view would be no. I think it would be ared rag to Brussels. A clause that allowed the UKParliament, when it wished to do so, to derogate froma particular part of EU law while remaining within theEU would, per se, be regarded as a violation of EUlaw—absolutely no doubt about it—by the EuropeanCourt of Justice, the Commission and the other EUinstitutions.The other thing to bear in mind—I entirely respectpeople’s differences of view, and I can see that otherpeople might legitimately take a different view fromthe one I have just taken—is that if we were to do thisin a particular statute, that would mean that onebelieves that anybody else should be able to do it intheir own domestic statutes, too. To the 27 memberstates, in terms of, as it were, normative equality, wewould be saying, “We can do this and, therefore, youshould be able to do this as well.” Okay? Whetherthat would, overall, enhance the viability of the EU orcause it to collapse is a question that has to be put onthe table.Chair: On the point about the red rag, perhaps I couldleave that one and thank you very much for coming,Professor Craig. It was extremely interesting. Thankyou very much indeed.

that context, do you believe that Declaration 17 canbind the Supreme Court of the United Kingdom or,alternatively, be used by it as an aid to interpretation?Professor Hartley: Declaration 17 simply states theposition under European Union law. It does not statethe position under British law. So if the question is,“Under the British constitution, does EU lawprevail?”, I don’t think Declaration 17 would bind the



22 November 2010 Professor Trevor Hartley

Supreme Court. It is simply a statement that,according to EU law, EU law prevails; and it doesn’tanswer the further question.

Q21 Kelvin Hopkins: Should clause 18 of theEuropean Union Bill refer to section 3(1) of theEuropean Communities Act 1972 as well as section2(1)?Professor Hartley: I think the same as Professor Craigabout that. I think it simply lays down a principle thatEU law is applicable in the United Kingdom solelybecause Parliament says so. The reference to section2(1) is simply a reference to what is meant by EU law.It says “rights, powers, liabilities, obligations,restrictions, remedies and procedures”. All that is justa way of saying EU law, but section 2(1) uses thoseterms, so it’s just a way of defining EU law. I don’tthink it means anything more than that.

Q22 Kelvin Hopkins: I think you’ve possiblyanswered this, in a way, but what weight do you thinkthe Court of Justice of the European Union wouldattach to clause 18?Professor Hartley: I don’t think the Court of Justicewould attach any weight, really. It has its view; wehave our view—by “we” I mean the UnitedKingdom—and I don’t think it would consider thatclause 18 affects the position in European Union law.It wouldn’t concern itself—or it might concern itself,but it’s got no power to decide—with what theposition is in British law.

Q23 Chris Heaton-Harris: Should we care what theEuropean Court of Justice feels about this?Professor Hartley: Well, in a sense, yes, but the Courtof Justice has no power to decide what British law isor what the British constitution is, so it can’t affectthat. It can say what European Union law is—and Ithink we do care what European Union law is—butstill it can’t basically affect the position of Parliamentin British law.

Q24 Penny Mordaunt: Has the question of whetherEU law has supremacy over the constitutional doctrineof parliamentary sovereignty been finally resolved bythe decision of the divisional court in Thoburn?Professor Hartley: Well, it’s been finally resolved asfar as that court is concerned. Obviously, a highercourt could take a different view, but I agree withProfessor Craig that I don’t think the Supreme Courtwould take a different view. So theoretically adifferent view could be taken; in practice, I don’t thinkit would.

Q25 Chair: Could I ask why not, Professor Hartley?Why do you think that the House of Lords—or theSupreme Court—would not take a different view fromthat in Thoburn?Professor Hartley: Because I think the Thoburnprinciple is that the position of European Union law inthe UK and the sovereignty of the British Parliamentultimately depend on British law. I think that’s entirelyin accordance with constitutional traditions andthinking in Britain, and therefore I think it would be

rather surprising if the Supreme Court took adifferent view.

Q26 Stephen Phillips: I agree with you, and I thinkthe Chair does as well, that the decision in Thoburnis right—so all three of us are in agreement—but bythe same token the argument advanced on behalf ofSunderland city council was not said to be unarguable,from which it follows that a different view could betaken by either the Court of Appeal or the SupremeCourt in relation to that argument.Professor Hartley: Yes. I think it all depends onwhere you start your argument from. I think it alldepends on where you start your argument from. Let’ssay that you start your argument from the Britishconstitution; that is your starting point. Paul Craigused the word “Grundnorm”—the fundamentalprinciple on which everything else depends. If yourfundamental principle is that the British constitutionis supreme law, the Thoburn argument, logically, mustfollow. If you take as your fundamental principle thatthe Treaty of Lisbon is supreme law in Britain, youget a different result. The question of what is yourfundamental principle is not really a legal question,because it’s a question that forms the basis of law andtherefore it depends more on history, politics and allkinds of things.These things can change, and if you look at the Britishconstitution, they have changed. The civil war broughtabout changes. The so-called glorious revolutionbrought about changes. Changes in the fundamentalprinciples can occur, but I don’t think anything hashappened in the last 50 years to suggest that there hasbeen a change, at least as far as Europe is concerned,so I can’t see anything that would make the Britishcourts—the UK courts—take a different view fromthe view they’ve taken before.

Q27 Penny Mordaunt: Can we be sure that EU lawis directly effective and applicable in national lawonly because of the European Communities Act?Professor Hartley: Yes, it is. I would take the viewthat the fundamental principle is parliamentarysovereignty and that under the British constitution atreaty can have no effect in British law unlessParliament passes legislation to give it effect. TheEuropean Community law is no more than a treatyand other things that are based on that treaty, so thewhole system rests on a treaty foundation and thatwhole system can have no effect in Britain unlessParliament passes a law to say it has effect. Therefore,the European Communities Act as amended lets thatEU law into our law. Its effect is dependent on that.If you took away the European Communities Act—ifyou repealed it—EU law would immediately cease tohave effect in Britain.

Q28 Chris Heaton-Harris: In a way, you’vedescribed the European Communities Act as agateway by which we allow, on an individual basis upto now—up to Lisbon—different laws in differentparts of the economy or trade or competition orwhatever it might be, to come through, but did notLisbon change that fundamental principle with theadvent of the passerelle clause?




Professor Hartley: First, when you say “on anindividual basis”, I think you mean on the individualbasis of treaty by treaty, because obviously thetreaties, going right back to the original EEC Treaty,said not only that this treaty was law, but thatregulations passed under the treaty were law. We haveone Act of Parliament that covers the treaty, or thetreaties—because there have always been several ofthem—plus the regulations, both past and future, sowe have one measure for all those things. We thenopened the gateway for those things.Obviously, if you have a new treaty, you have to havea new Act of Parliament. You could have a provisionin British law saying that under certain conditions,future treaties would be included in this, but the factremains that they have effect in Britain because aBritish Act of Parliament says so and for no otherreason. As far as I know, that’s exactly the positionin all the other member states. They have differentconstitutions and different requirements, but inGermany, Poland, Denmark or any country that youwant to mention, the fundamental proposition is thatEU law applies in our country because ourconstitution says so.The constitution may say so in different terms. It mayeven say that EU law prevails over the constitution toa certain extent, which is what the German one does—not completely, but to a certain extent—and it maysay that future treaties, provided they fulfil certainrequirements, will also have effect. But all that isdependent on the constitution in Germany, and inBritain on an Act of Parliament.

Q29 Chris Heaton-Harris: The reason I ask is thatin Lisbon, as was mentioned earlier, it’s the first timethat in the treaties, there’s been an exit clause. Butwhy would you need an exit clause if you alreadyhave a gateway that you opened at the very start ofthis process?Professor Hartley: As far as British law is concerned,you don’t need an exit clause. We were always free toleave, as far as British law is concerned, and we’restill free to leave, if we wanted to leave, without goingthrough the process laid down. As far as this countryis concerned, we could leave, and the British courtswould accept that. So the exit clause in Lisbon, which,as you say, is new, is not really necessary as far aswe’re concerned. I think they thought it made thesystem neater to allow people to leave, but it’s alwaysbeen possible to leave.In fact, in a way, one country has left, and that’sGreenland. Greenland was part of Denmark, in asense, but it had eternal self-government. It decidedto leave, and left. They actually negotiated their exit,so it’s not really a very strong assertion of nationalsovereignty, because Denmark remained in the Unionand Greenland left, but still, it was a precedent forpart of a country leaving—or a semi-country, orwhatever you want to call it. So my answer is that,strictly speaking, the exit clause is and was notnecessary, but they thought it would perhaps reassurepeople.Chair: In that context, Stephen Phillips, would yoube kind enough to ask the questions that you had inmind?

Q30 Stephen Phillips: With regard to the answer thatyou’ve just given, were Parliament to pass an Act thateither revoked or amended the European CommunitiesAct 1972 and withdrew from the UK or from part ofour treaty obligations, could it be argued, in yourview, on the basis of the obiter observations of at leastthree of their lordships in the Jackson case, that thecourt should disapply that revocation or thatamending statute?Professor Hartley: No, in my opinion, provided therevocational amending statute was appropriatelydrafted, was clear and unequivocal and expressedclearly, notwithstanding anything in EU law andnotwithstanding the European Communities Act 1972.If it was in sufficiently strong terms, then in myopinion, the Supreme Court would accept it as validlaw and would not disapply it.

Q31 Michael Connarty: Thank you. It is nice to seeyou, Professor Hartley. My interest is in thepracticalities of the Bill before us. The idea of this isthat we will give advice to the House, presumablywhen the Bill Committee is sitting as a constitutionalCommittee. Clause 18 has been touted as asovereignty clause, a re-statement of sovereignty. Willclause 18 change the way the courts interpret the dutyto review legislation in the light of EU law under theEuropean Communities Act 1972? Will clause 18 dothat? If it does not effect any change, does it have asymbolic value? If so, what is it?Professor Hartley: Yes. In my opinion, even beforewe had clause 18, Parliament was still sovereign.Clause 18 simply restates what I and many peopleregard as the position before clause 18. It simplyreaffirms what existed anyway.I think that the clause has value, because it emphasisesthat this is the law and this is the constitutionalposition. In my opinion, even without clause 18,courts would do what it says, but it would encourageand sort of strengthen them. I think that it has valueeven though, strictly speaking, it does not changeanything.

Q32 Michael Connarty: We have heard evidence onthe question of what a sovereignty clause would reallybe. A sovereignty clause would restate duality; weseem to have been told, “This is what this does.”Sovereignty would be absolute—Parliament coulddecide to do anything that it wishes—or thesovereignty clause would describe the primacy of UKlaw. Does this in fact describe primacy or just restatethe duality?Professor Hartley: It simply restates who decides thequestion of primacy, and how. Ultimate primacy lieswith UK law, but UK law can—and, in the EuropeanCommunities Act 1972, did—say that EU law is tohave primacy. Obviously, that can be changed in thefuture, so, in that sense, it is not a primacy clause.

Q33 Michael Connarty: It does not take backprimacy.Professor Hartley: It reaffirms who decides onprimacy, and the answer is that Parliament decides. Itdoes not itself say what happens, because that hasalready been specified in the 1972 Act.




Chair: That is a very good moment to bring in JacobRees-Mogg. I know that he would like to ask anumber of questions.

Q34 Jacob Rees-Mogg: On the issue ofparliamentary sovereignty, I wonder whether youthink that the classic understanding of parliamentarysovereignty is still valid, or whether the courts have agreater role within that, and whether that will bedecided by Parliament or by the courts themselves?As a final point to that, I wonder whether you thinkthe Supreme Court moving out of Parliament hasmade any difference to our understanding ofparliamentary sovereignty.Professor Hartley: On the last question, in myopinion, it has made no difference. It is just a changeof venue.On the earlier questions, as I said before,parliamentary sovereignty is the fundamentalprinciple of the UK legal system and the UKconstitutional system, and, because it is a fundamentalprinciple, it does not rest on any other legal principle.In other words, if you park your car where you shouldnot park it, and they give you a ticket and you go tocourt, you might say, “I don’t accept that this law isvalid.” They would say, “It is valid becauseWestminster city council”—or whoever it is—“saysso.” If you say, “What right do they have to passlaws?”, they would say that some Act of Parliamentsays so. If you then said, “What right does Parliamenthave to pass laws?”, they would say, “It is afundamental principle.” Everything is based onsomething else, but when you come to the finalprinciple, it is not based on any other legal principle.Why is that final principle valid? In my opinion, it isvalid as a matter of history, politics, power andwhatever else you want to say, and that is the presentposition. Perhaps it will change in the future, if therewere a war or revolution. These things can change,and they have changed in the past. In a way, askingwhether it is the courts or Parliament is not quite theright question. The courts might say something, but,in my opinion, they would still accept parliamentarysovereignty. The courts could give a view, Parliamentcould give a view, and various other people could giveviews. In a way, the final outcome would depend onpolitics. Can the one lot force their view on the otherlot? That is basically what it is.Certainly, if you look at Commonwealth countries youcan see examples of judges being arrested and throwninto prison, and the army marching in and doing thisand that. There have actually been cases in whichthere has been a coup d’état in Pakistan or variousother places and the courts have had to decide if theyrecognise the new order. Some of them have said,“Yes, we do recognise it, because this is the newreality”. So it’s not really a legal question.

Q35 Chair: Is it not a democratic question?Professor Hartley: Yes.

Q36 Chair: You said politics, but actually it isdemocracy, is it not? Some would argue that the realreason why it should be Parliament rather than theSupreme Court would be because it is Parliament, on

behalf of the voters, that is making decisions and thatthat is the reason why parliamentary sovereignty hasa special status.Professor Hartley: Yes, that is certainly oneargument, but you could put other arguments. If youlook at, say, what happened in Ireland or in the UnitedStates when there has been a new constitution, I thinkthat the ultimate question is simply whether that newconstitution has been accepted. I can go into that, ifyou want.If you take Ireland, Britain passed a statute saying,“Ireland is independent and this is the constitution”.So we took the view that the Irish constitution is validbecause the British Parliament said so. The Irish didnot agree with that. When they brought in a newconstitution—I cannot remember the exact date—theydeliberately created a legal break. They simply had areferendum and proclaimed a new constitution, butthey did not adopt it in terms of the old constitution,so nobody could say that the new constitutionsomehow owed its validity to what Britain had done.That was done on purpose and I think India did it aswell, when it became independent.So you can simply ask the question, “Why is theconstitution valid?” The answer is, “Well, it’s becausepeople accept it”. That is all you can say, I think.

Q37 Kelvin Hopkins: On that last point, it is a caseof saying, “We took our freedom—it wasn’t given tous”.Professor Hartley: Yes. That’s right.

Q38 Kelvin Hopkins: Is there a danger of limitingclause 18 to the scope of EU law and would a clauseof general application in a separate Act provide betterprotection for the principle of parliamentarysovereignty?Professor Hartley: Sorry. Are you asking would it bebetter if clause 18 was put in a separate Act?

Q39 Kelvin Hopkins: Well—if there was a moregeneral application. Is there a danger of limitingclause 18 to the scope of EU law and having it toonarrow, in other words?Professor Hartley: Clause 18 clearly is concernedwith EU law. Clause 18 says that it is only by virtueof an Act of Parliament that EU law is applicable inthe UK. So clause 18 is concerned only with EU law.Maybe I have misunderstood your question.

Q40 Kelvin Hopkins: Well, it is just a question ofmaking it more general, in the sense of having awider application.Professor Hartley: I don’t think that it could be widerin the EU sense. But you might want to have a clausethat says that no law—not only EU law, but theEuropean convention on human rights, the UN,anything—should apply in England, or does apply inthe UK except because Parliament says so. You mightwant that. But clause 18 is concerned solely with EUlaw.




As I said before, I think that the position is the sameas before—I don’t think that it changes the position.

Q41 Kelvin Hopkins: I have a personal question,Chair. I wonder whether I might ask it.Chair: Of course.Kelvin Hopkins: I wanted to ask about the EuropeanCourt of Justice. We think of courts as being separatefrom politics and the independent judiciary issomething that we regard as very important. However,the ECJ has made some judgments that have beenseen to be political, particularly the Viking judgmentand one or two other judgments relating to tradeunionists and trade union rights. Those rights areapparently enshrined in the European Unionconstitution, but the ECJ has made some judgments infavour of employers and against trade unions. In asense, that diminishes the sense of independence ofthe ECJ and the sense of it being a court of law ratherthan a political institution.Professor Hartley: I think that the ECJ isindependent, but that doesn’t mean that it’s notpolitical. Some of its judgments are influenced bypolitical considerations, but in a way it’s hard to avoidthat, depending on the circumstances. In manyinstances, a judge has his own views as to what isright and wrong, or what’s good or bad, and that couldbe—and is in some cases—influenced by politics.That shows through in the judgments. My answerwould be that the ECJ is in one sense political, butI’m not sure that it’s impossible to be completelynon-political.

Q42 Chair: One last question, Professor Hartley. Doyou think that there’s a legitimate concern that theEuropean Union Bill, in proposing a system ofreferendum locks, is limiting the sovereignty of futureParliaments to enact legislation on the EU?Professor Hartley: I don’t think so, because the Bill,assuming it becomes law, will be an Act ofParliament. We know that Parliament cannot bindfuture Parliaments, so a future Parliament could

always change it. It could repeal it—totally repeal it—or amend it, or repeal it in part. I don’t think that thisBill limits the powers of Parliament, any more thanthe European Communities Act 1972 does—theoriginal one.

Q43 Stephen Phillips: May I test your argument?Could the Statute of Westminster be repealed by thisParliament?Professor Hartley: Yes.

Q44 Stephen Phillips: What would the effect of thatbe, both in this country and, for example, in one ofthose territories formerly regarded as a Britishdominion?Professor Hartley: As far as this country isconcerned, it would then cease to have effect. Thatwould mean, in theory, that the British Parliamentcould legislate for Canada or Australia.As far as Canada is concerned, or Australia, itprobably would not have any effect. The Canadianswould take the view that, at some point, they’d cutthat link with the British Parliament. The Irish—wespoke about this before—deliberately broke the chainof continuity between the British Parliament and theirconstitution, precisely to prevent anything like fromthis happening. The Canadians did not do that, nor didthe Australians and New Zealanders, but I think thattheir courts would probably take the view that thepassage of time has changed things and has thereforeestablished a new fundamental principle in Canada—let us take that as an example—that the Canadianconstitution is supreme and Westminster no longer hasthe power to legislate for Canada.Chair: I finish by saying that I ought to declare aninterest in that because I was the legal adviser toQuebec during the Canadian repatriation proposals inthe early 1980s.We are extremely grateful to you for giving such clearanswers to these questions. Thank you very muchindeed.Professor Hartley: Thank you for inviting me.

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Thursday 25 November 2010

Members present:


Mr James ClappisonMichael ConnartyTim FarronChris Heaton-Harris

________________

Examination of Witnesses

Witnesses: Professor Trevor Allan, Professor of Public Law and Jurisprudence, Pembroke College, Universityof Cambridge, and Professor Anthony Bradley, Research Fellow, Institute of European and Comparative Law,University of Oxford, gave evidence.

Q45 Chair: Good morning Professor Allan andProfessor Bradley. It is extremely good of you tocome. We had a very interesting session withProfessor Paul Craig and Professor Trevor Hartley. Nodoubt you have had an opportunity to look at some ofthat material. We think we are getting somewhere, butwe have important questions to ask you as well. Wewill start with the same questions, barring a few thatwe think we have disposed of, so that we can havesome consistency. The opening question is first forProfessor Bradley and then for Professor Allan,although if you wish to answer the questions together,as you are together, that might be a good way ofdealing with them. You might want to interchange,and if you do have differing views, that will no doubtemerge in the course of the discussion.My first question is: has the question of whetherEuropean law has supremacy over the constitutionaldoctrine of parliamentary sovereignty been finallyresolved by the decision of the divisional court inThoburn? Following on from that—I will repeat itlater if you want me to—can we be sure that Europeanlaw is only directly effective and applicable innational law because of the European CommunitiesAct?Professor Bradley: I don’t think that the decision inThoburn has finally resolved all the questions thatmay come up. I, personally, support the general effectof Thoburn. The idea that there should be a categoryof constitutional statutes of a status such that thecourts should be slow to find that they have beenrepealed inadvertently seems to me an important stepforward. It is not a huge step forward, but I none theless welcome that development. I am a little surprisedthat some commentators have found the statement thata constitutional statute cannot be impliedly repealed amatter of shame or surprise. I do not share that view;to me, that is a satisfactory development.This does not answer all the future questions that theremight be about the relationship between EuropeanUnion law and United Kingdom law for this reason:the European Communities Act provides the doorwaythrough which European Union law is received, but itis a very short Act, and European Union law is verycomplex, being a legal system of a kind to which wehave not been exposed before. Therefore, there is theEuropean dimension which cannot simply becontrolled by the European Communities Act. So longas the European Communities Act remains in force,

Chris KellyPenny MordauntJacob Rees-MoggHenry Smith

at a European level, European law will prevail. Thedifficulties come—they were seen in the Thoburn caseto be difficulties that the courts could deal with—if itis the intention of Parliament to depart from EuropeanUnion law, how it should do that and, when it hasdone that, what the effects of it will be as a matter ofUnited Kingdom constitutional law. Those difficultieshave not been fully resolved by the Thoburn case.

Q46 Chair: Professor Allan, would you like to addanything to that?Professor Allan: I broadly agree with what ProfessorBradley has said. The Thoburn judgment seems to bea very good attempt to reconcile the problem of theconstitutional basis of EU law with the Europeandoctrine of the primacy of EU law. It seems to makejust enough adjustment to existing understanding asregards implied repeal to accommodate thosecompeting supremacies. For that reason, it is probablythe correct solution but, as Professor Bradley says, itdoes not really answer all the problems that may arise.For example, we still do not know what would happenif a statute purported to operate, notwithstanding EUlaw, when the implied repeal solution would not apply.It is not clear what the court would do in that situation,so I do not think that the problems are completelyresolved. The assumption just seems to be that we canmaybe survive because, in practice, perhaps they willnot arise.

Q47 Chair: Can I ask another question coming fromthat very issue? You have raised the notwithstandingformula, and that is quite a potent question. ProfessorAllan, you have written that, “Parliament cannot beaccorded unqualified authority to change the law”. Inyour evidence, you refer to “our conceptions ofdemocracy…based on the Rule of Law” and the “legalorder itself”. Who decides these conceptions? Whichlegal order and which law? Is a United Kingdomparliamentary statute, as clearly expressed from timeto time, derived from the democratic consent of theUK electorate, or is it EU law based on the voluntaryacceptance by Parliament in 1972, some of whichderives from an unelected Commission, some frommajority voting of other member states, and somefrom the activism of the European Court itself?In the circumstances arising from your view of thelegal order and the rule of law, do you consider thatan EU directive, such as the Working Time Directive,

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25 November 2010 Professor Trevor Allan and Professor Anthony Bradley

could be legally overridden or amended by UK statuteby such express words as “notwithstanding theEuropean Communities Act 1972”, unlike, of course,in Factortame, when the Merchant Shipping Act 1988contained no such notwithstanding formula? Do yousee where I am going?Professor Allan: I would argue that parliamentarysovereignty is ultimately a common law doctrine, ifonly because the courts will have to reconcile theconflicting instructions that, in your example,Parliament would be giving. If the EuropeanCommunities Act gives instructions to the judges torespect the primacy of EU law—which, in effect, itdoes—and a subsequent statute says that EU law isnot to apply in a particular instance, the judges arefaced with a conflict of instructions. They then haveto decide what the United Kingdom legal orderrequires them to do in those circumstances. It is veryhard to know the correct answer.

Q48 Chair: Is that why Professor Bradley thinks thatthe bet has not been resolved?Professor Allan: Yes, in a sense. As you say, theFactortame case was an easy case because one couldassume Parliament’s continuing intention not tolegislate in conflict with EU law. An expressnotwithstanding clause would simply raise a doubt.The judges would have to decide whether it reallymade sense to allow departures from EU law short ofa full repeal of the European Communities Act. Noone doubts that Parliament retains ultimatesovereignty in the sense that the 1972 Act could beamended or repealed. The difficulty lies in the areabetween where Parliament has not clearly done that,but has none the less purported to legislateinconsistently with EU law. That simply creates aconflict of legislative instructions that the judges willhave to resolve as best they see fit. It might dependon the circumstances. If there were very goodconstitutional reasons why Parliament objected to theapplication of a particular rule of European law, thatwould give the judges good reason to say, “Well, weought to respect Parliament’s more recent instructionsto override European law.”

Q49 Chair: That is of course in line with whatDiplock and Denning have said in Garland and inMacarthys, which are not quoted, it appears, in theexplanatory notes, although that is a separate politicalquestion for us. Professor Bradley has of course inthe past—in “The Changing Constitution”, edited byJowell and Oliver—posed the question about theefficacy of “the democratic process in the UK”, askingwhether it works “so perfectly as to justify the absenceof any limit upon the authority of Parliament tolegislate.” So the question really is: is it a questionultimately for Parliament to decide, because thereresides the democratic process for determination? Isimply invite you, Professor Bradley, to tell uswhether you agree with that, and whether clause 18fails to resolve the question.Professor Bradley: I did have the benefit of readingProfessor Tomkins’s paper in which, early on, hedeclares a commitment and a belief in parliamentarysovereignty. I have a qualified belief in parliamentary

sovereignty, because it would be remarkable, if wewere creating a new constitution for the UnitedKingdom, that it would proceed on the basis of theability of Parliament to make any law whatsoever, andthis in my view has been recognised. In other words,parliamentary sovereignty goes further than we needin a democracy. This has been recognised. I wouldgive the instance of the Human Rights Act, whichgoes a very long way towards meeting one of thearguments against parliamentary sovereignty.There is a democratic argument to be made forparliamentary sovereignty. I must point out that it isnot the House of Commons that is sovereign; it is theQueen in Parliament. It is a bicameral system. If theHouse of Lords has a function in the legislature,which it most certainly has, and is not democraticallyelected, that suggests that the democratically electedHouse of Commons is not on its own able to dischargethe burden of being sovereign. While I understand thatthere is a democratic argument for the sovereignty ofParliament, and while I believe that it is for ademocratically elected Parliament to make andapprove key changes of national policy—youmentioned that quotation from my chapter, Chair—itcannot be said that our democratic system is workingso beautifully that it can be trusted on its own to avoidsometimes committing abuses of a sovereign power.Chair: Jacob, would you be kind enough to ask thenext question, please?

Q50 Jacob Rees-Mogg: Yes, certainly. It leads on towho should really decide—whether parliamentarysovereignty is going to be decided politically byParliament or by the courts—in this continuingdiscussion. Is the absolute legislative supremacy ofParliament something that you think the courts will bekeener to challenge in future?Professor Bradley: I would answer that—maybe notcompletely—by saying that parliamentary sovereigntyis quite a complex concept. It is not one that you canboil down to a single rule that one could put into astatute, for example. It concerns foundations of ourlegal system, foundations of our democratic system,and relations between Parliament and the courts,Government, and so on. That is why in my paper Ihave tried to say that one cannot say that it is forParliament to create the doctrine of parliamentarysovereignty and it is not simply for the courts aloneto do so. It is a much more complex constitutionalrelationship, which has come about through history.Finding the ultimate source of parliamentarysovereignty is, in my view, a very interestingtheoretical speculation, but not a very important one.What is of great interest—and it is the work that theCommittee is involved with at the moment—is tryingto explore the implications of it today and how it isgoing to develop, because I do not believe that ourconstitution in its essential elements has come to theend of the road; it is still developing and evolving.That is why the relationship between the courts andParliament is a dynamic one, in which I would hopethat the courts would respect what they see as theproper role of Parliament and, equally, that Parliamentwill respect what it should see as the proper role ofthe courts.

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Q51 Jacob Rees-Mogg: How do you see thischanging? Do you feel that there has been any shiftfrom one to the other, particularly in the Europeancontext? Has European law allowed the courts tobecome more powerful relative to the legislature?Professor Bradley: There is no doubt that the publiclaw role of the courts is more prominent today than itwas, say, 40 years ago. Those who write about thedevelopment of public law talk about the period of the’40s and ’50s as being the great sleep. It was therevival of public law in the courts in the late ’60s andonwards—now in the procedures of judicial review—that had been enormously important as a constitutionaldevelopment, coming of course at the same time asEuropean development. In the European system, thedecisions of the Court of Justice are extremelyimportant as a source of principle and application.I do not think that I have answered your secondquestion, but maybe Professor Allan could come in atthis point.Professor Allan: On the first question about whereultimate sovereignty lies, it can be misleading to thinkthat all the power must lie with either the courts orwith Parliament, because they are interdependent.Parliament’s power depends on judicial recognition.Without judicial willingness to recognise and enforcestatutes, Parliament would have no sovereignty.Inevitably, the courts have a great deal of authority, ifonly by way of interpreting statutes, so there mustalways be a balance of power. That is why I prefer tosay that sovereignty inheres in the legal order itselfrather than in Parliament alone.Parliament and the courts are in an interdependentrelationship. The courts necessarily have to interpretstatutes and decide what they mean and, in somecases, interpretation may go a long way towardsimposing constraints on what statute can achieve. Anobvious example is the case of the ouster clause. IfParliament confers powers on a public body and thensays that there can be no judicial review, thatconfronts the court with a dilemma, because thatappears to be setting up a body that is able to abusethe rule of law—to exercise powers that are notconstrained by law—and indeed to flout Parliament’sown instructions in setting up that body with aparticular task. There the court has to say, “In ourallegiance to Parliament itself, we have to make surethat the public body obeys its statutory instructions,”even if that means giving the ouster clause—theclause excluding judicial review—a very narrowinterpretation. I see the power between Parliament andthe courts as interdependent, and that’s why I thinkone should say that the legal order itself is sovereign,rather than any one institution within it.Chair: Chris Heaton-Harris would like to ask aquestion.

Q52 Chris Heaton-Harris: Yes, on this very point.Professor Bradley, you have talked about theevolution that has been going on. I was a Member ofthe European Parliament for 10 years, so I have seenthis from a different view from the one I’m lookingfrom now. Will clause 18 go down as an importantpart of this evolution of our constitutionaldevelopment, or is it just fairly irrelevant?

Professor Bradley: I’ve been interested to see theform that clause 18 takes. I have to say that I find itdifficult to see what its practical impact would be onassisting the courts, or Parliament for that matter, inthese situations. It is true that an extreme position wasadvanced by Sunderland council’s QC, EleanorSharpston—it was really the entrenchment view thatone did not need to worry about the statutory positionin Britain because EU law was entrenched. Plainly,clause 18 would have made it impossible to advancethat argument, but it seemed to me a rather weakargument at the time, and it was rightly rejected byLord Justice Laws. I don’t see clause 18 having a hugeimpact myself. Is it being unfair to say that it is almoststating the obvious that matters derived from treatycannot operate as law in Britain without some supportthat gives them effect within Britain?

Q53 Chair: Professor Allan, would you like to addto that?Professor Allan: I don’t quite agree with ProfessorBradley about that, and I will just explain why. I agreewith his approval of the Thoburn judgment, but Iwonder about if the alternative argument wereaccepted. The EU Treaty is a very special kind oftreaty. The counsel’s argument that was rejected inThoburn is not unarguable, it seems to me. As I havementioned in my evidence, Professor Mitchell andothers have supported it—indeed, I have colleagueswho think this is the correct explanation of how thetwo legal orders should operate in harness. If thatargument is correct, it’s hard to see how clause 18could make any difference, because if one accepts theview that the EU order is an autonomous legal order,binding in the UK so long as we remain a member ofthe EU, clause 18 would simply be incorrect. Thatwould follow, I think, from that viewpoint. I am notsaying that that view is correct, but if it were, clause18 would make no difference. It is very hard to seehow it can protect us from the success of theautonomous legal order argument if people find itcompelling on other grounds.

Q54 Henry Smith: This is really an extension of thepoints and questions that have already been put. If thisBill were to be enacted broadly in its present form,there is a decision as to whether to hold a referendumon the transfer of future sovereignty—we are talkingabout a balance between Parliament and the courts.Do you think that that decision would largely bepolitical, or would it be a decision largely of thecourts, and, crucially, would it be subject to therigours of judicial review in your opinion?Professor Allan: Well, Professor Bradley raises thisissue in his evidence. Of course, it would be perfectlypossible for any later statute simply to amend the Billand state that any requirement for a referendum isremoved. It is difficult to see how the referendum lockcan be made secure. What is less certain is whatwould happen if there were no requirement for areferendum, but there was no express repeal of therequirement for a referendum. That would besomewhat uncertain. My guess would be that the courtwould say that the later statute simply implied the




repeal of the need for a referendum, in which case itwould be ineffective.Professor Bradley: Could I make a rather moregeneral reflection on that point? It turns into raisingaspects of the referendum lock in part 1 of the Bill.Going back to the early ‘70s, when Britain wasjoining the EEC, its unwritten constitution made iteasy to have a simple Act of Parliament, but it alsomade it difficult for Britain to give the guaranteesneeded.What, I think, constitutional courts in a good manycountries in Europe are now realising is that there isanother difficulty. The German constitution, forexample, provides certain guarantees for Germanconstitutional law against excessive acts by Europe,but there is nothing comparable in Britain. In the pastday or two—and I am in no way an expect on thesematters—I’ve come across references not only to theGerman constitutional court’s decisions but todecisions in Poland, Czechoslovakia, Hungary andpossibly other countries. Through their constitutionalcourts, they are having to grapple with how one dealswith the conflicting primacies and whether nationallaws give way in every case to European Union law.In a sense, this Bill is responding to a need for theunwritten constitution possibly to be articulated in oneor two ways that could protect British constitutionallaw and institutions from excesses by the EuropeanUnion. That wouldn’t be welcome to the mandarins inBrussels perhaps, but there is a more general feelingacross Europe than there was, shall we say, 30 yearsago.

Q55 Michael Connarty: I find this very interesting.As I said in a previous session, I’m tempted to goback to when I used to study and teach the Britishconstitution at high school. It is dangerous territory;we end up where you are speaking about. May Iclarify something for the record? You may have seenthat I have a particular interest in what advice we, asa Committee, would give to the Bill Committee,which will meet on the Floor of the House after allthis evidence has been given and sifted through.. Whatyou seem to be saying, Professor Bradley andProfessor Allan, in what you’ve written and said isthat clause 18 in reality does not change anything.You’ve said that the Dician principle has been erodedand that clause 18 would not lead to any change inthat. I think you, Professor Allan, said somethingsimilar, and therefore clause 18 makes no difference,whether or not Thoburn was right. It doesn’t matter;clause 18 doesn’t make any difference. Basically,would you say that clause 18 would not change howthe courts interpret their duty to review legislation inlight of EU law under the European CommunitiesAct? Clause 18 would make no difference to that incourt.Professor Bradley: I know Professor Craig in hispaper considers one or two scenarios in which it mighthave an effect. I don’t repeat that. On the generalquestions, there might be a case in which an EUregulation of some level was the basis for action takenin the United Kingdom. Is it arguable that on aparticular topic it falls outside the scope of section2(1) of the European Communities Act? If that is a

possibility, clause 18 would have some applicationand it would make a difference. The judge could thensay, “The only authority here is the European rule,which is not within the definition of European lawwithin section 2(1).” Whether a judge would have saidthat anyway, I cannot say. Plainly clause 18 wouldassist the judge to say, “In that case, find a statute, MrSo-and-So.” I think that is an unlikely examplebecause section 2(1) is drafted in very broad terms, asis clause 18, which simply brings in the broad termsof section 2(1). I am not ruling out that there could bea case in which it would have an impact, but my viewis that it is unlikely to have much practical effect. Itmay have a symbolic effect.

Q56 Michael Connarty: I’ll ask about symbolic in aminute. Professor Allan, could you comment on thecase of actual rather than symbolic effects?Professor Allan: I can’t myself see that it could haveany effect at all, because it simply restates the dualismprinciple, which Thoburn accepts, that EU lawultimately has effect in the UK as a result of theEuropean Communities Act. If there were somereason to question whether the relevant measure didfall within the provisions of section 2 of the EuropeanCommunities Act, that question could already beraised without clause 18.If the Supreme Court were minded to reject Thoburnand say that in its view Britain is a loyal member ofthe EU, had indeed accepted all the jurisprudence ofthe European Court of Justice, so that until Britainwithdrew from Europe altogether, we were bound byall of the European jurisprudence, and thereforeunable in any circumstances to resist the primacy ofEU law, clause 18 would make no difference, becausethe Supreme Court would be driven to the conclusionthat this was an erroneous declaration—it did notchange the law. I can’t see any circumstances in whichclause 18 could be significant other than perhaps in apurely symbolic way, as a restatement.

Q57 Michael Connarty: Can we turn to symbolic.Both of you—what would be the value of somethingthat is symbolic but does not make a difference?Professor Allan: I’m very sceptical.

Q58 Chair: Not Eurosceptical.Professor Allan: No. Sceptical of the point of clause18. I can’t see that it adds anything in practice.

Q59 Chris Heaton-Harris: Does it not make apolitical statement of Government intent?Professor Allan: That doesn’t change the legalposition; that’s the problem. Perhaps we want to bemore confident that the court will uphold the Thoburnjudgment and not accept the theory that EU law hasan autonomous existence within the UK. That seemsto rest on legal arguments about the merits of the rivalcases. Clause 18 is no different from the EuropeanCommunities Act itself. It does not solve the legalproblem.

Q60 Michael Connarty: You mentioned symbolic.What is the purpose of it being symbolic?




Professor Bradley: Could I give an example of asymbolic provision, which I think is of real value?The Constitutional Reform Act 2005, which dealt withthe reform of the judiciary and the position of the LordChancellor and so on, makes provision that Ministersshould be concerned to uphold the rule of law.

Q61 Chair: It says the same about judges as well.Professor Bradley: And judges, yes, and judicialindependence. Those are huge conceptsconstitutionally, with a lot of ramifications. I don’tknow precisely what the rule of law means. I knowProfessor Allan has written much more about it thanI have. There is a symbolic value in remindingeveryone that it is not just the latest clause in an Actof Parliament that should carry the day.Could I give an example that the Committee mightfind relevant, although ultimately I conclude thatclause 18 would make no difference? That is the wayin which the European arrest warrant was transposedinto UK law. The British regulations were prettycomplex and added in requirements that were not inthe terms of the European arrest warrant, whichcaused all manner of difficulties.

Q62 Michael Connarty: That is what’s called gold-plating.Professor Bradley: Ultimately, the Supreme Courtsaid that it was not permissible, because one had togo by the European law. I don’t think clause 18, inthat situation, would make any difference.

Q63 Jacob Rees-Mogg: Professor Allan, followingon from what you’ve been saying and paragraphs 10and 11 of your evidence (REF), if you take the view,which I would absolutely see the logic of, thatThoburn is right, clause 18 becomes unnecessary. If itis wrong, and there is this higher level of Europeanlaw, it is pointless. The question I would ask iswhether we are moving along. In 1972, it wasabsolutely clear that European Union law had effectonly because of an Act of Parliament. As times havedeveloped, there is more of a feeling and more of anargument that European law actually has a status ofits own.If that is the move that we’re having, does clause 18help to move the tide back? What you’re saying inparagraphs 10 and 11 makes complete and logicalsense, but are we actually somewhere in between?Therefore, do we need to say to the courts, “Let’s goback to 1972. Let’s reassert this basic principle as anaide-mémoire, because otherwise European law iscoming in as a fount of justice in its own right”?Professor Allan: That is a very good question, and Iam very tempted to agree with that, although, I think,in the end I am resistant to it. The problem is that itis not like affirming the rule of law or theindependence of the judiciary, which is a veryimportant symbolic act; the problem is that thistouches the sovereignty of Parliament itself. That isthe difficulty. It is impossible to take the responsibilityto decide how to reconcile these conflictingsupremacies away from the judges. This seems to bejust adding further instruction into the mix. It doesn’tseem to be able to resolve that potential conflict.

Even if it is a strong assertion of Parliament’s view ofthe current position, I don’t see logically how it couldrestrain a judge who thought that development wassuch that there was now very little prospect of Britainleaving the EU, for example, and that it was better tohave a unified legal order where there wouldn’t bepotential conflicts and where the judges would knowprecisely what they should do in the event ofconflicting instructions and, therefore, accepted thisalternative autonomous theory. I think that is ratherunlikely to happen.

Q64 Chair: Well, as a matter of fact, ProfessorBradley, in his works, has actually already dealt withthe question of the extent to which it would beunlikely for such an occurrence to occur. In thediscussions that we’ve had, there is a certaindifference of opinion between the two of you inrespect of some of these issues.Coming to the point, if a statute derogates from anEU legal obligation—repeating my point about theWorking Time Directive, for example—by using anotwithstanding section, in respect of the EuropeanCommunities Act, it would appear that the WorkingTime Directive would not apply in the UK. In yourjudgment, how would the courts interpret that?Professor Bradley: I didn’t comment earlier on thenotwithstanding point. It is not an easy one, but myview at the moment is that if the intention is madevery clear in the new United Kingdom statute that thisis to operate, notwithstanding the particular rule ofEuropean Union law, that is what the courts wouldapply. They would enforce that.

Q65 Chair: That is very clear. Would it follow thatif clause 18, which you regard as being of little effectother than declaratory, was needed to be altered in anyway to ensure that it achieved an objective that wasto reflect the will of Parliament, a clear, inconsistent,subsequent enactment, including the word“notwithstanding,” would actually be necessary?Professor Bradley: It’s the difficulty of marryingtogether the general proposition with the specificinstance. The logic that follows from the Lawsargument in Thoburn is that for Britain to depart fromEU law would need a very specific provision like“notwithstanding a certain directive”. Then, to me, theanswer is decided by the terms of that statute so Idon’t think the clause would help. Had this clausebeen in existence before the Merchant Shipping Act1988, I don’t think it would have been of any effectbecause section 2 of the European Communities Actis still operative and therefore there is still statutorysupport for the EU rules.

Q66 Mr Clappison: I think you dealt with myquestion when responding to Mr Rees-Mogg. I waswondering about the practical side of this. You weredealing with how things have changed over time sinceBritain’s entry to the European Community and insuccessive treaties and other ways since then. We haveseen a huge shift of competence to the EU,particularly through the most recent treaties, and alsoof law making and decision making. What effect doyou see that having on the constitutional position just




because so much competence, so much power and somuch authority is vested in European institutions.How do you see that shaping the future of theconstitutional doctrine, which I think Professor Allansaid would remain intact in his view? How would yousee that shaping the doctrines?Professor Allan: I think it does make it more difficultto be confident about what the court would do in theevent of a notwithstanding clause, to go back to theprevious question. Professor Wade argued verystrongly at the time of Factortame, that he rejected thereasoning in Thoburn, or reasoning of that kind putforward at the time, that this was simply a matter ofconstruction and that the court would try to read thestatute compatibly with European law so far aspossible. He took the view very strongly that that wassimply inconsistent with membership of the Union. Iargued and disagreed with that, but I do think he hada point.I think that the halfway house, keeping the EuropeanCommunities Act unamended but then having anotwithstanding clause in relation to a later measure,sets up a real contradiction. The longer we remain amember of the European Union and the more powersthat are transferred, the less realistic it becomes,probably, for judges—not to deny that Britain couldnot withdraw altogether—but the more unrealistic itbecomes to expect judges to disapply or, rather, tooverride EU law in particular instances. I do thinkthere is some possibility there that doctrine may shiftin that respect and so we might then see Thoburn asone step towards a larger modification whereby thejudges would say, “Well, we must have an explicitrepeal or amendment of the European CommunitiesAct.”

Q67 Chair: But then it would be a political questionof democratic consent, wouldn’t it?Professor Allan: Yes, I think that if Parliament makesit clear that the whole basis on which Britain’smembership of the European Union is being changed,then the judges would certainly respect that.

Q68 Chair: But that’s a very big question. It’s a hugeleap from saying leave the community, on which somany of these constitutionalist arguments seem to beconstructed, to modifying the application of aparticular law which is causing problems in theeconomy or in the national interest by using thenotwithstanding formula, such as the Working TimeDirective, some would argue, which seems to me tobe of a different order. Whereas the broad landscapequestion about leaving the European Union is a hugerquestion, the other one raises questions of principle,which also need to be addressed, surely?Professor Allan: Well, I think that is right, but it maybe that the judges are not the right forum. It may bethat we have to rely on political measures to resolvethe problem in the machinery of the Union. Otherwisewe are giving judges conflicting statutory instructionsand they have some duty to ensure that the rule oflaw, in the sense that people know what theirobligations are, has reasonable certainty. ProfessorBradley may be right. At the moment I think that aclear notwithstanding clause would probably be

accepted, but I don’t think we can be confident thatthat will remain the case for ever.Chair: That’s a big question.

Q69 Henry Smith: To extend that point about havinghad almost four decades of competencies transferringto the European Union, and the opinion that, as youhave said in evidence, clause 18 in itself would not bestrong enough to take us back to the 1972 situationbefore the European Communities Act, does ittherefore follow that, to take us back to that position,would take the establishment of something akin to theGerman constitutional court or constitutional courtsthat exist in other EU member countries, and thereforesomething more akin to a written constitutionsolution?Professor Bradley: I was in fact wondering aboutadding my answer to what Mr Clappison had asked.If one were looking for guidance of what kind ofprinciples or values one wishes to protect, the Germanconstitutional case law could provide some examples.They do have protection of rights. They have certainaspects of the German constitution that cannot beamended. There are other federal matters. It is a littledifficult to see how these could be translated intosomething specific for legislation by Parliament. ButI can understand the feeling that, “Well, don’t we havesome of our constitutional history and experience thatit is important to continue to stress, even if Europeanlaw is developing in certain fields?” I wonder whetherone would get any guidance from what one would putinto a British Bill of Rights; whether trial by jury, forexample, might be something that isn’t shared withmost of our European partners and isn’t protected bythe European Convention on Human Rights, but onewould think that most of us would like to preservetrial by jury against inadvertent European change.

Q70 Jacob Rees-Mogg: Moving back to whatParliament now may not do, if it passed an Act thatrevoked or amended the European Communities Actand withdrew the UK from the EU or part of the EU,could it be argued on the basis of the obiterobservations of the three Law Lords in the case ofJackson that the courts could disapply the revoking oramending Act?Professor Allan: I wouldn’t have thought so. I readJackson as just, in a way, stating what I said earlier inthe sense in which parliamentary sovereignty itself isa doctrine linked with the rule of law. I think thejudges were saying that even the supremacy ofParliament is accepted on certain very basicassumptions about upholding the rule of law. I don’tthink that they were laying any basis for resisting amove by Parliament to withdraw or repeal theEuropean Communities Act. So I don’t think that’sany basis for that.Professor Bradley: I felt in regard to the speech ofLord Steyn, for example, that I admired some of theideas he was expressing, but I don’t see how theycame to be justified in the particular circumstances ofthe litigation before them. The courts at that levelshould surely deal with the issues they have to dealwith and not go into unnecessary matters that maydeprive their decisions of some of their force if people




get concerned. There was, I think, a simple clear-cutsolution in the Jackson case. I don’t think it wasnecessary in that case to get into those widerconsiderations. I wouldn’t have thought, with allrespect to Lord Steyn, Lord Hope and Lady Hale, thatwhat they were saying would be a baton for otherjudges lower down in the system to pick up and runwith. I think it would be clearly judged as wide obiter,and shouldn’t be taken as typical of judicial views.

Q71 Chair: But that is important, because after allthey are in the Supreme Court, or at any rate two ofthem remain. Lord Bingham felt it was necessary inhis book “The Rule of Law” and in hiscommemoration lecture, most unusually, to makesome very strong comments in defence of JeffreyGoldsworthy’s view and his own regarding thequestion of the defence of parliamentary sovereignty.If I could just quote what Lord Steyn said, because Ithink it is important to get this on the record. Youhave referred to him, saying you weren’t quite surethat he’d perhaps got it entirely right, if that is notunfair of me. The wording he used was, “The classicaccount given by Dicey of the doctrine of thesupremacy of Parliament, pure and absolute as it was,can now be seen to be out of place in the modernUnited Kingdom. Nevertheless, the supremacy ofParliament is still the general principle of ourconstitution. It is a construct of the common law. Thejudges created this principle. If that is so, it is notunthinkable that circumstances could arise where thecourts may have to qualify a principle established ona different hypothesis of constitutionalism.”1 Thatsounds awfully like what Professor Trevor Allan saidin a book he wrote some time ago.I just wonder whether that isn’t also to be weighedagainst Lord Hope’s comment, which you havementioned as well. It is quite categorical: “Ourconstitution is dominated by the sovereignty ofParliament. But Parliamentary sovereignty is nolonger, if it ever was, absolute.” And then he goes on.We are talking about some very, very importantjudicial statements, which I would suggest go beyondthe suggestion of pure obiter. They are making a claimabout the sovereignty of Parliament, which is whatthis inquiry is looking into. Their being in theSupreme Court raises certain questions about howthey might, for example, apply similar principles tothese vexed questions that we are looking at onclause 18.Professor Bradley: I would respond, I fear, slightly todisagree. Not if one looks at the paragraph from theLaws judgment that is quoted in the explanatory notes,for example, the categorical statement that“Parliament cannot bind its successors…cannotstipulate as to the manner and form of any subsequentlegislation.” Lord Justice Laws went on to state,“Being sovereign, it cannot abandon its sovereignty.”I have in my writings tried to show why I think thoseideas are overstated. If there is a vote in NorthernIreland in favour of unification with the Republic, theBritish Parliament will abandon sovereignty overNorthern Ireland. It has, I think, abandonedsovereignty over many Commonwealth countries, and1 Jackson v Attorney General [2005] UKHL 56, para. 102.

it is pointless to ask whether one could repeal theindependence legislation.Particularly on manner and form, I was veryinterested, Chairman, as you have mentionedGoldsworthy’s work, that in his most recent book heis not against the possibility that Parliament cangovern the future form and procedure of legislation. Iwould say it does, anyway. If Parliament todayreconstructs the House of Lords—maybe turns it intoa senate—Parliament in future will be the Senate andthe House of Commons. There is no way that thepresent House of Lords could come into being again.By altering the composition of Parliament, Parliamentcould alter matters of form and procedure. It may notwish to do so and it may not always succeed, but thefact is that it could do so. To take part 1 of the presentBill, I am not saying that Parliament cannot enact part1 of the Bill as it stands. What I would say is that onecannot be certain in all circumstances of what itseffect will be, as Professor Allan has alreadymentioned, if there is future legislation.Professor Allan: Can I just add a comment on theseinteresting dicta in the Jackson case? Part of theproblem is that some of those judgments appear to besuggesting that some important constitutional changeis in the offing. We are told that, step by step, theprinciple derived from Coke and Blackstone is beingqualified. Another way to understand this is thatperhaps we are getting a better grasp of the nature ofparliamentary sovereignty. If you go back to Dicey,he was clear that there was a balance between thesovereignty of Parliament and the rule of law. He laida lot of stress on the powers of the courts to interpretlegislation. I think that one could read Lord Steyn andLord Hope as not advocating revolution or any majorconstitutional change, but simply underlining thepoint that all along there has been an implicitunderstanding that legislative supremacy is exercisedin the context of a constitution built on the rule of law.That goes back to the point that I made about ousterclauses and so on beforehand. It would be acontradiction for Parliament to confer wide powers ona public body and then deny all judicial review,because that is to take the body outside the rule oflaw, and that is probably what Lord Steyn primarilyhas in mind.

Q72 Chris Heaton-Harris: Bearing in mind theproblem that clause 18 is trying to solve, in a way,what should it contain, what should it look like andhow should it be drafted? Or is it actually impossibleto draft something that makes such a profound changein just a paragraph?Professor Bradley: My guess is that, when theEuropean Communities Bill was being considered—Chris Heaton-Harris: I am after help with myamendments.Professor Bradley:—in Parliament, it had been seen.Mr Heath’s Government had sent it to Brussels, andBrussels had said, “Well, this is all right. This is asufficient guarantee that the United Kingdom willobserve the requirements of Community law.” That ispossibly one reason why the Government refused toallow any amendment to be made to that Bill. If clause18 or some equivalent is enacted, I would be




astonished if Brussels immediately said, “Well, thisputs the United Kingdom in breach of its fundamentalobligations towards the Union.” Professor Craig mightsay that a lot of specific instances—for areferendum—might do that, but I have no authorityon that at all.I find it difficult, I’m afraid, to answer your question.Clause 18 is making a certain point and let it be made.Whether one could redraft it or reform it in a way thatmeets more essential concerns, I find it very difficult.I’m afraid I’m not going to offer a constructive answerto your question.Professor Allan: That would be my answer as well,I’m afraid. I think that while the EuropeanCommunities Act 1972 is on the statute book, it ishard to see how one could draft a clause that wouldmake any significant difference. All one can do is trythe notwithstanding clause in respect of a particularpiece of legislation. To try and do it in a general way,however, just sets up a contradiction with the effect ofthe European Communities Act. That is the difficulty.Professor Bradley: A further thought came to mewhile saying that I could not give a constructiveanswer to Mr Heaton-Harris. Maybe, now that wehave a Scottish Parliament, if one wanted to, onecould put a clause in that would in some way preservethe Sewel convention in matters of European law.That is not unlike what has happened in Germany. Ido not know whether the Scottish Government havecomplained that they have been left out of discussionsover EU matters that concern them, but a clause ofthat sort—to preserve the interests of the ScottishMinisters, the Scottish Parliament and to worksimilarly for Wales—could surely be added and itcould not be said to be in breach of any fundamentalobligation towards the EU.Chair: That is a good moment to bring in MichaelConnarty.

Q73 Michael Connarty: Yes.I found a lot of the contributions very interesting andtempting, but not always particularly relevant. I lovedthe debate about where we’re going in our changingconstitution and what the purpose was ofparliamentary democracy in the first place, but I’mmuch more interested in the evidence you’ve givenabout the possibility that this Act in general—if it’senacted—saying there must be a referendum, attemptsto bind future Parliaments and therefore has to be, yousay, a constitutional law. You could not have animplied repeal by having a future Act of Parliamentthat did not contain a referendum in relation tosomething to do with Europe. Can I just ask a questionon the very principle? You say in paragraph 11 that,basically, “the common law recognises a category ofconstitutional statutes.” Can I just ask very simply forthe layman—I am very much a layman—what makesa constitutional statute in common law, in relation toany other, which then has this problem that it cannothave implied repeal?Professor Bradley: Somewhere I had a note of whatLord Justice Laws said constituted a constitutionalstatute—Chair: He’s coming to see us.

Professor Bradley: His examples were matters thatconcern the relationship between the state and thecitizen, and the people; or—and he said it is likely tobe the same thing—that concern the fundamentalrights of the people. So the Scotland Act 1998,creating a new democratic system in Scotland, theEuropean Communities Act, the Bill of Rights, theParliament Act—these are all—

Q74 Michael Connarty: I recognise them by theirbeing there, but what I’m trying to get at, and whatI’m really interested in, is that you seem to imply thatthis Act, if it’s passed, containing the referendumcould be interpreted by the Supreme Court as aconstitutional Act and therefore would bind a futureParliament, unless a future Parliament Act specificallyrepealed the referendum section of this Act. Is thatwhat you’re saying?Professor Bradley: I think that’s unlikely, but supposeon one of the matters covered by referendum lock afuture Parliament says, “This shall be approved,” andthe Act does not include a referendum clause, I don’tsee that any elector will have a legal ground for sayingthat there should be a referendum, except in theunlikely chance that you would go to the court, andthe court would say, “Ah, there should have been anotwithstanding clause to make it a matter of expressrepeal, rather than just assuming.” That was what Ihad in mind.As I said in my evidence, it’s one thing to say thatMinisters should not do anything without an Act ofParliament; it’s the same thing to say that certainchanges in EU law should not be approved withoutan Act of Parliament. It’s another thing to say thatParliament must itself do something and must includea clause to that effect, because if Parliament doesn’tinclude that clause then I would think it would takeprecedence over what is now proposed in this Bill.

Q75 Chair: Could I ask—in the light of thatinteresting exchange, which relates to the question ofreferendum locks and whether they would limit thesovereignty of future Parliaments to enact legislationon the EU—the Government have stated that therewill be no transfer of power or competence from theUnited Kingdom to the European Union in thelifetime of this Parliament, so how does this affectyour view of whether the Bill is intended to bindfuture Parliaments, and whether it therefore might besaid to be unconstitutional?Professor Bradley: The Government are perfectlyentitled to say what they have done, and if Parliamentwishes to incorporate that statement in legislation it isentitled to do so as well. What I think cannot happenis that it would be binding on future Parliaments. Ihave in mind a similar point in the Fixed-termParliaments Bill. It is one thing for this Governmentand Parliament to say that the next election is goingto be on such and such a date in five years’ time. It isnot really competent for this Parliament to say that thenext Parliament also has to have a fixed term of fiveyears, because that Parliament will surely be able tomake up its own mind.




We are not far off the manner and form, or the formand procedure—in some circumstances I would say,as I have said already, that Parliament can legislatefor the future form and procedure of legislation. Myimmediate reaction to the referendum lock provisioncontained in part 1 of the Bill is that it hasn’t done sohere, therefore there could be future legislation thatignores the referendum lock. Politically, there couldbe a huge comeback to that, but this is the kind ofstatement in an Act that is ultimately backed up by apolitical decision and wouldn’t ultimately be backedup by a legal one.

Q76 Chair: Professor Allan, do you have a furtherpoint before I ask Michael Connarty? Do you have afurther reflection on that point?Professor Allan: No, I very much agree with whatProfessor Bradley has just said. I do think that thewhole question of what is a constitutional statute is avery interesting issue, but it seems to be quite a fuzzynotion. It applies very well in the context of the 1972Act, because one can see the reason there for saying,“Well, you need express repeal to have clearinstructions, ” but it doesn’t really seem to apply withthe Human Rights Act, I think, because the HumanRights Act in any event requires an interpretativeprocess. It doesn’t prevent legislation overriding anyof the conventional rights, so actually I don’t thinkthat Lord Justice Laws’ reasoning applies very well tothe Human Rights Act.

Q77 Chair: But then, of course, under the EuropeanCourt’s own rulings in Van Gend,Handelsgesellschaft, Costa and all the rest, as set outin Declaration 17, it is quite clear that, contrary tothe human rights position, the European Court assertsconstitutional supremacy over our Parliament. Thatraises a huge and bigger issue, does it not?Professor Allan: Yes, but that’s why, in a sense, Ithink the Thoburn judgment affords quite a usefulreconciliation. We go as far as we can to accept theprimacy of the EU law, but without accepting theconstitutional basis put forward by the EuropeanCourt of Justice. So, in some ways, it is quite a specialand unique problem. The constitutional statute ideamay be largely a resolution of that particular question.I am not sure how far it readily extends to other areas,because it doesn’t seem to me to apply to the HumanRights Act, because of the nature of that Act. I am notsure how far we can extend the reasoning.Professor Bradley: Could I add a comment? LordJustice Laws’ judgment suggests that we shouldclassify an Act of Parliament in its entirety as eitherbeing a constitutional Act or not. That would workbetter if we had a written constitution, so that weknew that amendments to the constitution werecoming in as an identifiable package. But our systemof legislation does enable an ordinary Act ofParliament to include a constitutional clause of quitesome significance—experienced parliamentariansprobably know that. Certainly, when I was advisingthe House of Lords Constitution Committee, one ofthe things that we were looking out for was clauses inActs of Parliament dealing with such things as,perhaps, cockle fishing, dentists or whatever, but that

none the less had immense implicationsconstitutionally.If I may be forgiven for referring to a matter of currentcontroversy, I think that the Public Bodies Bill mightappear to be unconstitutional. It needn’t be classed asa constitutional Act, but look at the effects of it. Takean uncontroversial example—a clause that givesexcessive powers to a Minister, a Henry VIII clauseon a matter that shouldn’t be dealt with in that way.Isn’t that of constitutional significance as well? MaybeLord Justice Laws has helped us with the very clearActs that can all be identified as constitutional, but Idon’t know whether he would agree to a similarapproach being taken to clauses of Acts that were ofsimilar constitutional significance.

Q78 Michael Connarty: It’s good that we are talkingabout Ministers, who probably don’t follow thetortuous work of this Committee in its normal form.We try to get Ministers to adhere to the wishes ofParliament when they go to Council meetings andagree things, but they tend to go native, shall we say,when they get there. There is a conundrum. Forexample, were a Minister inadvertently, or forwhatever reason, to agree, in breach of a provision ofthis Bill, to a new proposal that extends EUcompetence or power, and that proposal is directlyeffective or applicable, as so often they are, withoutthe referendum law being used, in the UK, undersection 2(1) of the European Communities Act, itwould become applicable. Case law suggests that theEuropean Communities Act is not an Act that can beimpliedly amended—you said repealed or impliedlyamended. In your view, should a provision—and if so,what provision—be put in this Bill to clarify that anEU proposal that extends competence of power inbreach of part 1 of the Bill can never become anenforceable right for the purposes of 2(1) of theEuropean Communities Act? How would we put asafeguard in the Bill to prevent a Ministerinadvertently increasing the power of the EU byagreeing something in Council?Professor Bradley: That’s a difficult question, but animportant one. What has been done in part 1 of theBill, as far as I understand it, is to specify a numberof specific instances where the referendum lock wouldapply. Your implied question is: could this become ageneral clause that stated that power should not beadded or transferred without an Act of Parliament?Isn’t that a perfectly draftable provision to imagine—that no Minister can extend the powers andcompetence of the European Union? We are talkingabout what Ministers may do; we’re not talking aboutwhat a future Parliament may do. Given the greatbreadth of section 2 of the European CommunitiesAct, which also includes the very wide delegatedlegislation powers, it seems perfectly proper to drafta general provision that would achieve an object ofthat kind.Chair: I need to ask Chris Heaton-Harris about this,but I would just like to qualify the expression if I may,because it was a bit ambiguous, where it states thatcase law suggests that the European Communities Actis not an Act that can impliedly be amended. That isambiguous, I think. It really should have said “some




case law,” because that is a fairly controversialquestion.

Q79 Chris Heaton-Harris: I am interested in thetransfer of competences angle. In practical terms,there are very few vetoes for a British GovernmentMinister to use. Could it be argued that in areas wherewe have a future veto, if we choose not to play it, itwould extend a competence? Post-Lisbon or with thepasserelle clause, you could argue that the EuropeanUnion has as many competences as it needs. Surely,if it is an area where we have a veto on future power,we are extending a competence. If that could beargued, are we not constantly binding—and have wenot constantly bound in the past—future Parliamentswith things such as the budget negotiations in termsof the financial perspectives that last for seven years.That is always going to be longer than a term of anyParliament.Professor Bradley: I fear that that question takes meout of my depth. For example, the matters thatProfessor Craig addressed in evidence related to the


Witness: Professor Adam Tomkins, John Millar Professor of Public Law, University of Glasgow, gaveevidence.

Q81 Chair: Professor Adam Tomkins, thank youvery much for coming along to see us. We now haveoverrun our time slightly, but I think it’s been worthit, because an extra 20 minutes on a matter which goesback several centuries is probably not time wasted,particularly having regard to the Civil War, the 1648and 1649 problems of constitutional law, sovereigntyand supremacy, which ended with the execution of theKing, followed by the problems which arose in the1680s and so on. I think we can afford an extra 20minutes of our time—not to mention the Reform Act1867.Professor Tomkins, we’re trying to get a kind oftemplate by asking more or less the same questions,so forgive me for starting off with a question that’salready been put. Can you answer this question? Hasthe question of whether European law has supremacyover the constitutional doctrine of parliamentarysovereignty been finally resolved by the decision ofthe court in Thoburn, in your opinion?Professor Tomkins: Mr Chairman and members of theCommittee, good morning. Thank you for inviting me.I will answer that question in one second, but beforeI do so, I must say that as well as being a Professorof Law at Glasgow, I am also a legal adviser to theHouse of Lords Constitution Committee, but I appearbefore this Committee this morning purely in apersonal capacity. Nothing that I say here is to bedeemed to represent the view of any Committee orMember or Officer of the House of Lords.My answer to your question, Mr Chairman, is thesame, I think, as the answer that you already receivedfrom your previous witnesses, which is to say that no,it would be dangerous to represent Thoburn as thedefinitive answer to anything, because it’s a first-instance decision of the Divisional Court.

difference between competence and powers. I amafraid I have nothing to contribute on that at all. Itwould depend on the terms of treaty, would it not? Ifit says that the European Union body may do X or Ybut shall not do so without a vote whereby the UKhas a veto, it must be arguable whether that is reallyan extension. We are not talking about an extensionof the EU powers; we are talking about whether ornot the veto should be given. The example you gave,in very general terms, I will answer as generally as Ican by saying I don’t think this would be treated asan extension of powers. But that is said without anyknowledge of the detailed operation of EuropeanUnion law. I suggest that would be a question worthaddressing to others than myself.

Q80 Chair: Professors Allan and Bradley, thank youvery much for coming. It has been very interesting. Ithink there still remain some uncertainties, and I thinkthere is a slight difference of opinion between you ona number of matters, but it has been very helpful tous. Thank you for coming.

It’s a first-instance decision of the Divisional Courtthat was given by a very highly respected but nonethe less sometimes quite controversial public lawjudge, Sir John Laws. I’ve heard you say, and I’mdelighted to know, that he’s coming to yourCommittee to give evidence later on. I have noparticular reason to believe that the Court of Appealor the Supreme Court wouldn’t uphold the reasoningthat Lord Justice Laws employed in the Thoburn case,but it’s dangerous, I think, to regard first-instancedecisions as anything other than first-instancedecisions, even where they weren’t appealed and evenwhere they are decisions by judges as eminent inpublic law as Sir John Laws undoubtedly is.

Q82 Chair: Leading on from that, could you be surethat European law is only directly effective andapplicable in national law because of the EuropeanCommunities Act 1972?Professor Tomkins: That’s my view, and that was myview long before Lord Justice Laws decided theThoburn case. That was my view when I first read andtried to understand the Factortame litigation from 10years previously. I think that it’s an uncontroversialposition to take. I’m not aware of anybody taking thealternative position seriously, apart from EleanorSharpston QC—as she then was—who put theargument to the contrary on behalf of her clients inthe Thoburn case.

Q83 Chair: And she is Advocate General?Professor Tomkins: Yes. She is now one of theAdvocates General.

Q84 Chair: You ought to bear in mind that the powerof the EU is sometimes reflected by the appointments.



25 November 2010 Professor Adam Tomkins

Professor Tomkins: Indeed.To go back to the point about Thoburn, it seems tome axiomatic and elemental to a fairly basicunderstanding of British constitutional law thattreaties have force as a matter of domestic law only ifand in so far as they are given force by Acts ofParliament. There is nothing special or different aboutthe EU treaties in that regard. I think it’s a fairlystraightforward issue.In the light of that, Mr Chairman, I must say that Ifind clause 18 baffling, because it is addressing onlythat little bit of what is actually a much bigger set ofconcerns, and it is addressing the little bit of a muchbigger set of concerns that does not seem to beproblematic. That was perhaps why your previouswitnesses have said to you, and I agree with them,that it’s unlikely to be of any real practical effect.If this is the attempt—I don’t know if it is—by theUK Parliament to reassert or reclaim some kind ofsovereignty in the face of European competencecreep, it “don’t do what it says on the tin.”

Q85 Chair: But of course, you said “Parliament”—Ithink you possibly meant “Government”.Professor Tomkins: Well, of course Parliament hasnot debated the Bill, apart from the deliberations inthis Committee.Chair: That is why we are looking into theirassertions.

Q86 Jacob Rees-Mogg: So you’re absolutely sure,effectively, that EU law is only directly effective andapplicable in national law because of the EuropeanCommunities Act?Professor Tomkins: I have no doubt about that, in mymind, as a matter of legal analysis of UK law. Now,the European Court of Justice and, indeed, otherinstitutions in the EU may or may not take a differentview. But with all respect, their view as to thisquestion being a question of UK law is immaterial.Questions of UK law are determined by UKauthorities, not European authorities.

Q87 Jacob Rees-Mogg: It follows from that pointthat the UK courts will therefore remain sympatheticto the legislative supremacy of Parliament, or do youthink that the judges may be willing to assert morepower because of the development of European law?Professor Tomkins: I think that gauging the level ofcontinuing commitment in the UK judiciary to thesovereignty of Parliament is obviously and necessarilya speculative exercise. However, I think that theclearest signs are that the courts are not sure howcommitted they want to continue to be to thelegislative supremacy, in that sense, of parliamentarysovereignty.The leading case on this is the Jackson case, whichyou talked about with your previous witnesses andwhich I wrote at some length about in my writtensubmissions to the Committee, for the reason that,although it is a case that on the face of it does nothave anything to do with EU law, one of the thingsthat that case most sharply and, to my mind,alarmingly indicates is that even our highest court, aswas, is not sure what to do with parliamentary

sovereignty. It isn’t sure what the legal basis forparliamentary sovereignty is. It isn’t sure how muchparliamentary sovereignty is under challenge. It isn’tsure how much parliamentary sovereignty continuesto represent the “grundnorm” or the “bedrock” or the“keystone” of the constitution—all of those wordsare used.The reason why the Jackson v Attorney-General caseis so long, although so little was decided in it, is thatso many of the judges who decided that case, not onlyin the House of Lords but also lower down, wantedto use the case as a vehicle for the expression of abewildering variety of different views about the past,present and future state of parliamentary sovereignty.The case, I think, is authority for not much, but it isauthority for the proposition that we have the right tobe concerned about what is going to happen toparliamentary sovereignty in the hands of the courts.

Q88 Chair: Would it not also be the case that thatwas what prompted the late Lord Bingham to takesuch an unusual step in both a very important lectureand chapter 10 of his book, The Rule of Law,specifically—I have to use the word—attacking thebasis on which those assertions were made by certaincurrent Supreme Court judges? Then again, you haveLord Judge, the present Lord Chief Justice, saying inthe Judicial Studies Board lecture in March this yearthat we must beware—I know that this is in thecontext of Strasbourg decisions—of the fact that someof our judges are directly applying Strasbourgprecedents, which he effectively condemned. Forpractical purposes, it seems that we are getting towhere the Supreme Court is beginning, as ProfessorDrewry said in his previous Toulouse lecture, to enterinto territory that no previous generation of judges hasever seen fit to go, which rather endorses the viewthat you have just expressed in broad terms.Professor Tomkins: I am glad you said that, becauseI was just about to say that I agree with what ProfessorDrewry said, although I haven’t read that lecture. Yes,what Lord Bingham seems to do in hiscommemoration lecture at King’s College London in2007, which I referred to my written submission, wasto ally himself with the outspoken criticisms of LordSteyn’s dicta, particularly in Jackson, which werepublished in the Law Quarterly Review—a journal thatis not normally regarded as being among the moreradical law journals. In that journal, what Lord Steynsaid about the sovereignty of Parliament in Jacksonwas described as “unargued and unsound, historicallyfalse and jurisprudentially absurd”. Those aren’t LordBingham’s words, but those of the author of the articlein the Law Quarterly Review, Richard Ekins. But LordBingham seemed to ally himself with those, and madethe point very clearly in his commemoration lecturethat what Lord Steyn said in Jackson—these are LordBingham’s words now—“did not bear on an issuewhich had to be decided in the case, and thereforehave no authority as precedent”.

Q89 Chair: That wouldn’t sound very much to meas if he was endorsing those propositions as beingreflective of—let’s call it—the rule of law.




Professor Tomkins: Lord Bingham’s view in Jacksonwas that the bedrock of the British constitution is—not just was—the supremacy of the Crown andParliament. It is the dissent from that view, which youcan see in the opinions of Lord Steyn, Lady Hale andLord Hope, which I think Lord Bingham is comingback to in his 2007 lecture.

Q90 Chair: Would you like to give us some of yourviews? You had the opportunity to listen to a varietyof views expressed today and also, no doubt, to lookat some of the evidence that has already been put onthe website. Would you like to give us your viewsabout the efficacy of clause 18, against thebackground of not merely the revocation of repeal ofthe European Communities Act, which some wouldsay is an extreme Act, but the question of dealing witha disapplication of individual provisions by the use ofthe expression “notwithstanding the EuropeanCommunities Act 1972”, with specific reference to,for example, a highly political but none the lessimportant question, such as the Working TimeDirective, on which the Prime Minister himself hasindicated in a lecture in recent years is something thatsome people would like to see, to use the vernacular,repatriated?Professor Tomkins: I agree with the evidence thatyou’ve heard already this morning that it is verydifficult to know whether clause 18 adds anythingvery much to the current legal and political debateabout what the effect of a “notwithstanding” clause islikely to be. The short answer is we simply don’tknow what the British courts would do with a“notwithstanding” clause, as it hasn’t been inlegislation that has been litigated. I agree with theevidence of Professors Bradley and Allan that,assuming that the “notwithstanding” clause wassufficiently robustly and tightly drafted, as you wouldexpect it to be, the British courts, on current evidence,would be highly likely to give effect to it.

Q91 Chair: In your written evidence you gave aninstance of an Act where there was a disapplicationthat used language that you indicated could have thedesired effect.Professor Tomkins: Yes, in a Bill, not in an Act. ThatBill was never passed.

Q92 Chair: It was a Bill, of course, yes. It happenedto be my Bill.Professor Tomkins: Yes.

Q93 Michael Connarty: Can I follow that up? Itseems, having watched the procedures of theEuropean Union, that if you passed an Act that had anotwithstanding clause in it that then contradicted ordenied some part of European legislation that we hadagreed to in Council in some way, surely the EuropeanCourt of Justice would judge on that and someonewould apply to the British courts to have a judgmenton whether that was binding. Presumably, under the’72 Act it would be binding, because it’s really animplied amendment or rejection of that Act.Professor Tomkins: There are two claims tosupremacy on the table here and there have been since

1964, when Costa v. ENEL was decided by the Courtof Justice eight years before the UK joined. These twoclaims to supremacy compete with one another. So farin the history of the European Union, quiteremarkably, these two claims to sovereignty havenever clashed. The nearest they came to clashing inthe UK case, of course, was the example ofFactortame. But they have never actually clashed, sowe don’t know what will happen if or when they do.It’s necessarily a speculative exercise.The immediate question for this Committee and theHouse is whether clause 18 will make any differenceto any of this. My respectful submission to you is thatit doesn’t. I read Professor Craig saying to you onMonday that if and in so far as clause 18 is asovereignty clause, it’s not a primacy clause anddoesn’t deal with the question of which has primacy inthe event of a direct clash between these two differentcompeting claims to supremacy.Some things are more likely than others. One thingthat is likely to happen in the event of this sort ofscenario is that the Commission would take action inthe European Court of Justice, which would find thatthe UK was in material breach of EuropeanCommunity law and it might then be subjected to apenalty payment. What if the UK didn’t pay it—refused to pay it? Not only are we speculating now,but we’re outside the domain of law. There won’t bea legal solution to these sorts of questions, should theyever arise. There would be a political or diplomaticsolution of some sort. These are ultimately notquestions of law.My view, however, is that if the UK Parliament passeslegislation that clearly articulates that a particularpiece of legislation is to have effect and be availablein the UK, notwithstanding any provision to thecontrary in the ECA 1972, and notwithstanding anyprovision to the contrary in European Union law, theUK courts would, for the time being, give effect tothat notwithstanding clause, notwithstanding the factthat in doing so they would know that they would bein breach of EU law. However, even if that predictionturns out to be correct—even if that analysis is legallycorrect—I don’t think I would be relaxed about theCommittee taking the conclusion from there that wecould afford to be blasé about this for the foreseeablefuture. There’s no guarantee that 15 or 20 years downthe line the same sort of legal advice as you’ve heardthis morning would be given to a Committee suchas this.This is an area of law—by that, I mean constitutionallaw generally and specifically the relationshipbetween member states and the EU within our Britishand European constitutional arrangements—that ischanging. It’s changing all the time. It’s changingpartly because of things that are happening in thisHouse, partly because of things that are happening inthe courts and partly because of things that arehappening in Europe. We are in a—this is going tosound a bit pompous; sorry—prolonged moment ofconstitutional fluidity.

Q94 Michael Connarty: I have a minorsupplementary question. It seems somewhat trivial,but does clause 18 therefore have any symbolic value?




I suppose the question coming out of that is, why putit in at all? Is it necessary if it doesn’t have somevalue?Professor Tomkins: Let me answer the secondquestion first, if I may. Why put it in? I think it’sextremely dangerous, as I say in the closingparagraphs of my written submissions. The rule that Iwould respectfully urge you to bear in mind in dealingwith this or any other question of constitutionalreform is the most powerful law of constitutionalreform, which is the law of unintended consequences.The more I think about this, the smaller clause 18seems. It seems to be dealing, as I said a few momentsago, with one aspect of a big problem that is not itselfparticularly problematic, because it was fairly clearlydealt with by the Thoburn judgment. Yes, we can’t beoverly relaxed about the fact that the Thoburnjudgment is definitive for all intents and purposes.None the less, it’s the state of the law for the timebeing, and nobody is really suggesting to you that itshouldn’t be the state of the law for the time being.Thoburn deals with that, and it’s an issue that doesn’treally need to be dealt with any further. Clause 18doesn’t deal with any of the problems that do reallyneed to be dealt with, in my respectful judgment,relating to questions of sovereignty in the context ofthe relationship between the UK and the EU. Nor doesit deal with any other of the challenges toparliamentary sovereignty outwith the context of theEU that again do, in my submission, need at least tobe considered or examined, if not necessarilylegislated for.

Q95 Henry Smith: Which begs the question: if theintent of clause 18 is to have the effect that yourevidence and the previous evidence, which we havebeen privileged to hear, suggest it does not have, whatwould need to be enacted, in your opinion?Professor Tomkins: That really depends on what youwant to do. I’m sure that in this context, theparliamentary draftsmen have drafted exactly whattheir ministerial instructions told them to draft. Thisis a question of Government policy or, if you prefer,a question of parliamentary policy, rather than aquestion of legal advice—he said, backtracking. Butthe serious answer to your question—well, that is aserious answer to your question. The further answerto your question is that it depends on what you wantto try to do.You’re parliamentarians. You, together with yourfellow parliamentarians in this House and in theHouse of Lords, may feel that your collectivesovereignty is under threat—is under challenge—inways that you’re not comfortable with, whether that’sfrom Brussels, Luxembourg or Strasbourg or whetherit’s from Scottish devolution, human rightsjurisprudence or the global economy. Whatever thesource of your sense that your sovereignty issomehow under threat in a way that you’re notcomfortable with, that source needs to be dealt with.If you take the political decision to address that inlegislation—that’s a political decision—the legislationhas to deal with that source.

Q96 Chair: But don’t you agree it’s also ademocratic decision, because the basis on which weare elected is to reflect the views of the voters? You’vetouched on the question of the relationship betweenthe United Kingdom and Europe in the more generalsense. If, for example, the assumption that the singlecurrency was a good idea has turned out to bequestionable or wrong then quite clearly, in so far aswe’re bound into Treaty obligations and the rule oflaw, these are highly charged political questions thatcan be resolved only as a matter of democraticconsent. I would have wondered whether it couldreally be dealt with by some idea of the rule of law,because these are questions that ultimately depend onthe democratic consent of Parliament, do they not?Professor Tomkins: Mr Chairman, you are quite right.Again, what I would say is that these are matters aboutwhich political judgment is required. Sometimes, thepolitical judgment will be that these are matters withwhich we should deal as a nation through ourrepresentative institutions, such as our systems ofparliamentary government. Sometimes, the politicaljudgment will be that we need to put the question toa referendum. Sometimes, the political judgment willbe that these may appear to be, temporarily, in theheat of the moment, important questions that touch onnational sovereignty, whereas actually there areprecedents and we can allow them to be dealt with inthe usual way through the Council of Ministers orcourt action. The point is that these are questions ofpolitical judgment.

Q97 Chair: And indeed—if I may just add one lastthought on that—the Bill is predicated on theassumption that it will deal only with futurecircumstances relating to European law and itsdevelopment. There are circumstances in which, to goback to Lord Denning in Macarthys and Lord Diplockin Garland, one may need to look back to the questionof whether or not the assumptions on which it wasconstructed need to be re-evaluated. At that point,Parliament may decide that it wishes to make a changein order to bring the jurisprudence in line withpolitical reality.Professor Tomkins: Well, indeed, and as I understandit, there is nothing in the Bill that would enable thatto be done. Again, whether you want to put somethingin the Bill to that effect is a question of politicaljudgment. Remember my law of unintendedconsequences. Such a declaration by a Parliament ofa member state that it wishes to seek to reclaim thepower, perhaps for the first time, to unpick decisionsthat have been made previously is, I would havethought, likely to have significant consequences.

Q98 Chair: It could have very importantconsequences, but it might also be necessary if“notwithstanding” was effectively the only route thatcould be adopted to achieve the correct legal result.Professor Tomkins: How so?

Q99 Chair: Well, to use the expression“notwithstanding” creates the circumstances in whichyou are excluding yourself from the automaticapplication of sections 2(1) and 3.




Professor Tomkins: On the other hand, perhaps oneshould not get too excited about the unintendedconsequences—perhaps they are sometimes intendedconsequences. After all, at least since Nice, if notsince Amsterdam, we have had what has sometimesbeen called multi-speed Europe. We have complexsystems in Lisbon of opt-ins and opt-outs.

Q100 Chair: Enhanced co-operation.Professor Tomkins: Exactly. Enhanced co-operation,closer co-operation, the Schengen area and so on.Perhaps in a Europe of 27 member states, there isroom for different member states to proceed indifferent directions and/or at different paces withregard to certain policy areas, without the wholehouse collapsing.

Q101 Michael Connarty: This is a very interestingdiscussion, but is any of that in this Bill? We’re nothere to discuss the philosophy of the constitution, butto take evidence to give advice on the Floor of theHouse when it sits as a constitutional Committee onthis Bill. I don’t see in this Bill the Chair’s formerBills on sovereignty that he has tried to bring forward.You have said more than others about your concernsabout clause 18 in the Bill that we have before us—that it does not have any effect in real terms on therelationship with the EU and does not change theinterpretation of the European Communities Act 1972.Professor Tomkins: Can I just respond very quicklyto that?Michael Connarty: I want to ask about somethingthat is far more important.Professor Tomkins: I am sure that there are manymore important things to be talking about. However,if the House of Commons were to proceed to legislatethis Bill into law without considering what theimplications of legislating on a little bit ofparliamentary sovereignty might be on the rest of theareas that I have highlighted in which parliamentarysovereignty may be perceived to be under challenge,there may be very grave consequences in terms of theway in which such incomplete and partial legislationwould subsequently be used in case law. I tried tosketch that out in the closing paragraphs of mywritten submission.

Q102 Michael Connarty: I understand now whatyou mean by dangerous. Can I move to the questionof binding Parliaments? If this Bill is passed and isseen as a constitutional law, a future law relating tothe EU passed by a future Parliament will look as ifit is an implied repeal of this Act, if it does not havea referendum clause in it. Will it, in fact, bind futureParliaments, unless it specifically has a clause statingthat we must have a referendum on future Bill?Professor Tomkins: There are lots of foggy areas overthe sovereignty of Parliament, but the foggiest of themall is the idea that Parliament cannot bind itssuccessors.There are two big cases in which the expression“constitutional statutes” has been used by judges. Thefirst is the Thoburn case, where Lord Justice Lawssaid that the European Communities Act 1972 was aconstitutional statute. That was the first anybody had

heard of it. The expression “constitutional statute”was, for these purposes, invented by Lord JusticeLaws in his judgment in the Thoburn case. You canask him about this yourself, but as far as I understandit, the reason why he invented it in the Thoburn casewas to deal with an argument that had been put to himby counsel about implied repeal.In my understanding, the argument was, in any event,misconceived, because the doctrine of implied repealis much more straightforward, much simpler andmuch narrower than most people think. One Act ofParliament can be held to have impliedly repealed aprior Act of Parliament only if the two Acts are aboutthe same thing. That is clearly set down in the leadingjudgment, by Lord Justice Maugham, in the leadingcase, Ellen Street Estates, in the 1930s. In the materialcase, the Thoburn case, the two statutes we are talkingabout are the European Communities Act 1972 andthe Weights and Measures Act 1985. They are notabout the same thing. No one could have held—absentany rhetoric about constitutional statutes—that theWeights and Measures Act 1985 impliedly repealedthe European Communities Act 1972. The idea thatParliament would legislate to renegotiate therelationship between the United Kingdom and the EUwithout express reference to the EuropeanCommunities Act 1972 is, anyway, preposterous.Implied repeal happens when Parliament has forgottenthat it has already legislated about something, orwhere there is an oversight, so that when there are twopieces of legislation that are mutually incompatible,judicial preference is given to the latter over theformer. That is not going to happen with regard to theEuropean Communities Act 1972, I would havethought.The second circumstance in which “constitutionalstatute” as a phrase has been used—I think it is muchmore important, although it may be less important forthis particular Bill—is the case of Robinson v.Secretary of State for Northern Ireland. It was a Houseof Lords case, in which the House of Lords split bythree to two, with Lord Bingham in the majority. Itwas about the correct interpretation of the NorthernIreland Act 1998, which Lord Bingham and themajority held in that case to be a constitutional statute.There the issue is not about implied repeal; it is aboutstatutory interpretation. The rule or principle that LordBingham ushered in, in the Robinson case, is that theNorthern Ireland Act 1998 is to all intents andpurposes the constitution of Northern Ireland, and itshould be interpreted constitutionally, rather thanthrough the perhaps narrower or stricter constraintsof regular statutory interpretation. So, constitutionalstatutes should be interpreted “generously andpurposively”, in his words.That has been picked up in subsequent litigation inScotland, where there have been challenges to variousdecisions and enactments by Scottish Ministers andthe Scottish Parliament on Scotland Act grounds. Thisis a much more important growth of the idea of“constitutional statutes”—that they might beinterpreted differently from other statutes, or that theymight be interpreted in accordance with differentprinciples from the principles that the courts ordinarily




use for regular statutes. That is the law onconstitutional statutes.If this Bill is passed, will it count as a constitutionalstatute for either of those purposes? I do not know. Ivery strongly agree with the suggestion that was beingput to you by Professor Bradley. There are all sorts ofconstitutionally terribly important provisions in bits oflegislation that might not be classed as constitutionalstatutes as such. I agree with him that the PublicBodies Bill is a good current controversial example.

Q103 Michael Connarty: Clause 4 lists a largenumber of things that would attract a referendum. Forexample, a future Act might be passed by Parliamentin line with an EU wish or decision in Council to dosomething in tandem with the EU as a sharedcompetence that is not at the moment a sharedcompetence, but it does not say that in so many words.Rather it says that it will do something in relation to,let’s say, fishing. That is a sole competence of the EU,but I am thinking, in particular, of an area where wedo not have a competence with the EU entirely andwe decide to share it with them—let’s say borderpolicing or something like that—and there is noreferendum on it. Is that an implied repeal? Are theysaying this is a constitutional Act, you cannot do that?Where do we go from there? It seems to stick us in alist of situations where they are all constitutional Acts.We cannot imply a repeal of them and, therefore, wecannot do anything except to have a referendum onwhat is merely a sensible, administrative arrangement.Professor Tomkins: I am really glad that you askedthis question, Mr Connarty, because it raises anotherbig concern I have with this Act as a whole. Theimmediate answer to your question is no one knows.Any answer to that question is purely speculative and,therefore, is liable to be litigated. The chances are thatit would be litigated a long way up and that it wouldcost a lot of money and take a lot of time. It wouldgenerate legal uncertainty. That is not the onlyinstance where this Bill, if it is passed in its currentform, invites litigation. It goes out of its way toinvite litigation.The other big example is in clause 5(4), which relatesto ministerial statements being laid before Parliamenton whether a particular issue is or is not significant—or sufficiently significant to attract the various locksor mechanisms. I think that I am right in saying thatthe explanatory notes state that ministerial decisionsto make or not to make these statements will bejudicially reviewable. Again, it is inviting the courts tobecome significantly more involved than they hithertohave been.

Q104 Chair: This raises the Drewry point.Professor Tomkins: With respect, it is not quite thesame as the Drewry point. This is not the court saying,“We want to have a view.” This is a Bill beforeParliament that invites the courts to come in. This isnot judicial activism.Chair: I see that.

Q105 Mr Clappison: I am glad that you mentionedthat, because that is one of the things that I wanted tocome on to following Mr Connarty’s earlier question.

It is one of the things that caught my eye. I am not inany way a constitutional lawyer or an expert, but as aMember of Parliament I find it rather strange to beasked to legislate on something that then leaves itopen to a member of the public to go before the courtsin a judicial review. Do you think that this would beimproved slightly if we took the decision away fromthe Minister and made it subject to a vote in bothHouses of Parliament? At the moment, there is thedecision by the Minister. Once that decision is taken,the only thing that could happen is for a member ofthe public, or whoever, to go off to the courts.Professor Tomkins: That may be one alternative.Another may be—although he may not thank me forsaying this—to have a structure such as the one inthe Fixed-term Parliaments Bill whereby the Speakercertifies that a particular statement is conclusive forall purposes, and you use parliamentary privilege tokeep that out of the court. Various mechanisms couldbe employed if Parliament wanted to employ themto ensure that these statements or decisions were notjudicially reviewable. That might be something thatthe House will want to consider as the Bill progresses.

Q106 Chair: I would only add that I have the leadamendment on that in the Fixed-term Parliaments Billand the wording that was chosen expressly excludesthe wording in the 1911 Act. The question of whetherit would get to the courts is a very contentious issuethat will be discussed next Wednesday. We will begoing into that in some depth.Will you throw your mind back to the explanatorynotes on this Bill. Curiously, in respect of Macarthysv. Smith, which is quoted, and also in regard toThoburn, the explanatory notes leave out the referenceto what Lord Denning said about expresslyinconsistent enactments. When they get on toThoburn, they refer to the sovereignty question interms that you, Professor Bradley and Professor Allanhave already described, but they leave out thereferences to the question of the status ofconstitutional statutes. So we have this extraordinarysituation in which, as you indicate, there is the severepossibility that this might be litigated, but on the basisof trying to get it through Parliament, the Governmentexplanatory notes almost—let us be blunt—deliberately leave out the two elements that wouldmove the argument in the other direction. Thatsuggests to me a sleight of hand that they may havethought that we might not have noticed.Professor Tomkins: I don’t know whether it is asleight of hand or not, but that is on the record.Chair: Well, I can say that.Professor Tomkins: I have never seen a Bill aboutwhich I am so concerned about the explanatory notesas I am with regard to this Bill. Explanatory notes arecited in court these days. There are contrary dictaabout the extent to which you can do it, but it is a bitlike the Pepper v Hart rule about ministerialstatements. It is clear that, as usual, these explanatorynotes have been very carefully drafted, but it is notclear that these explanatory notes have the solepurpose of explaining what is in the Bill.For example, I think that there are mistakes inparagraph 8 of the explanatory notes, which states:




“Clause 18 of the Bill places on a statutory footingthe common law principle of Parliamentarysovereignty” and so on. First, there is greatcontroversy, as we have already seen, about whetherparliamentary sovereignty is a common law principle.Secondly, clause 18 does not place on a statutoryfooting the common law principle of parliamentarysovereignty, not even with respect to directlyapplicable or directly effective EU law. It doesn’t deal,as you have already heard, with the primacy issue; itdeals only with the source issue, which isn’t really aquestion of sovereignty.Most importantly with regard to that particularsentence, I think, again, that it is potentially extremelydangerous for the Government and/or Parliament tosignal to the courts that they now accept thatparliamentary sovereignty is simply a common lawprinciple. If it is a common law principle, it follows,doesn’t it, that, like any other principle of the commonlaw, it can be changed by the courts? That wasprecisely—the words unsound, absurd, unhistorichave been used—the position that was taken by LordSteyn in Jackson v Attorney-General that LordBingham found to be so problematic. The explanatorynotes, not just with regard to the detail of what issaid about clause 18 from paragraph 104 onwards, butmuch earlier on in this particular instance, are veryworrying indeed.Chair: I am very grateful to you because I referred inmy opening statement to these assertions contained inthe explanatory notes for this very good reason. Ofcourse, we have invited the Secretary of State himselfto come to give evidence, and we have also asked forthe legal adviser to come with him so that we will beable to ask these pertinent and extremely importantquestions.

Q107 Mr Clappison: As the Chair has rightly saidto you, this begs a question for Back-Bench Membersto ask: what can we do to remedy this situation?Professor Tomkins: I am afraid that my answer to thatquestion is going to be the same as the one I gave inresponse to Mr Smith’s earlier question. That reallydepends on your political judgment about what youwant to achieve, what you want this legislation toachieve and the problems. One kind of classicapproach to statutory interpretation that the courtshave taken in the past is what’s called the mischiefrule—what is the mischief that the legislation isdesigned to remedy, address, deal with or tackle?Once that question is clarified in your minds, the restnaturally follows. I can’t tell you what the question isthat you want to be addressed in legislation. As I keepsaying, that is a question of political judgment.Chair: Michael Connarty.Michael Connarty: No, I’m happy. I read throughyour contribution and listened to what you have said,and it has been very useful. I have noticed at the backProfessor Bradley nodding in one direction andProfessor Allan sometimes nodding in the other. It isclear that there are discussions to be had among thepeople who teach these things, but we have had a veryhelpful triangulation this morning of three opinions.

Q108 Chair: Could I ask you another question? Wehave already put it to Professor Bradley and ProfessorAllan and we would like to ask you the same question.Suppose a Minister was inadvertently to agree, inbreach of the provisions of the Bill, to an Europeanproposal that extends competence or power, and thatthe proposal is directly effective or applicable. Itwould automatically become an enforceable rightunder section 2(1) of the European Communities Actin the United Kingdom. Some case law suggests thatthe European Communities Act is not an Act that canbe impliedly amended. May I invite your opinion asto whether provision should be made in the Bill toclarify that if a European Union proposal extendscompetence or power, and is breach of part 1 of theBill, it can never become “an enforceable right” forthe purposes of section 2(1) of the EuropeanCommunities Act 1972? What is your view on that?Professor Tomkins: My view is that that is a verydifficult question. The scenario that you paint raisesin an acute form a problem of legal certainty. Legalcertainty is a ground of judicial review in EuropeanUnion administrative law, and it is a legal principlethat also becomes more important in domestic UKadministrative law cases. There will also be argumentsabout legitimate expectation and the extent to whichlegislation laid down an enforceable right andexpectation that a particular procedure should befollowed, quite apart from the question of whethersuch provisions bind future Parliaments.Having identified the potential loophole gap in the Billas currently drafted, I am not sure what the wisestlegislative solution is. Were you to include in the Billa provision that qualified the definition of directlyeffective or directly applicable European Union lawas a matter of UK law, so as to put the UK’sunderstanding of directly effective or directlyapplicable law at odds with the ECJ’s understandingof directly effective or directly applicable law, thatmight put the United Kingdom in breach of its Treatyobligations in the view of the European Court ofJustice.

Q109 Chair: That in turn would raise the question,would it not, of the role of the ECJ in the context ofCosta and the other cases that you’ve alreadymentioned in asserting its constitutional supremacyover Westminster, and therefore our ability to makethat kind of judgment? That in turn would probablyend up in the Supreme Court and be left to thejudgments of the Supreme Court judges, some ofwhom have already been referred to.Professor Tomkins: Indeed. It is inevitable—well,nothing is inevitable, but it seems very highly likely—that were such a scenario to manifest itself in practice,it would be litigated all the way up the food chain.

Q110 Chair: Do you think it possible that given themanner in which the Bill has been constructed, and inlight of the apparent deficiencies in the explanatorynotes, it is not merely an invitation for those personswho might wish to litigate in future under this, but italso invites the answers that some people might thinkthey would get from the Supreme Court?




Professor Tomkins: I don’t know if I would go as faras saying that. Turning my mind to alternatives, onemight want to rewind from this Bill a little bit andsay, “If we are worried about Ministers agreeing underclause 8 to an extension of EU competence throughArticle 352, as it now is, and we want to check thatin some way, without legislating for it and therebypotentially creating these very grave hazards of legaluncertainty, how would we do it?” The answer is: thisplace—Parliament. It is Parliament thatconstitutionally holds Ministers to account. Parliamenthas to find ways of making its accountability for whatMinisters decide in Council—with regard to Article352 or anything else—more effective. If we had trulyrobust, vigorous and detailed accountability inParliament of ministerial decision making in Council,there would be no need for this at all, because wecould trust Parliament to do the job.

Q111 Chair: But you know, Professor Tomkins, thatwhen you get on to the question I put to ProfessorsBradley and Allan, decisions are taken that havelegislative effect that come from regulations made bythe European Commission direct. We have majorityvoting, which is not something that we are even ableto trace in terms of the decision-making process,

because it happens behind closed doors, and then thereis the judicial activism of the European Court itself.In all these contexts, what you are really saying, Isuspect—if I do not invite you to make a comment bya leading question—is that the ultimate issue, as faras the supremacy or sovereignty of Parliament isconcerned, must be dependent on democratic consent,and that in the rule of law, that should be the guidingprinciple, and not some constitutionalism.Professor Tomkins: Exactly. So it depends on theability of Parliament, which specifically means thisHouse—the House of Commons—to hold Ministersmeaningfully to account for decisions that are takenin the national name in Brussels or in Luxembourg.Chair: Chris Kelly, did you want to ask a question?Chris Kelly: No.Chair: Are there any further questions that anyonewould like to ask?Professor Tomkins, thank you very much indeed, andI thank all the other witnesses. I am glad to say thatall this is on record, and if I may say, I am grateful toHansard for the speed with which it puts the transcripton to the website so that all witnesses are able toevaluate the position as we move forward. Thank youall very much.

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Monday 6 December 2010

Members present:


Mr James ClappisonMichael ConnartyChris Heaton-HarrisKelvin Hopkins

________________

Examination of Witnesses

Witnesses: Mr David Lidington MP, Minister for Europe, Foreign and Commonwealth Office, Alison Rose,Head of Communications, Institutions, Treaty and Iberia Group, and Ivan Smyth, Legal Adviser, gaveevidence.1

Q112 Chair: Minister, welcome this afternoon. I’msorry we’re running a tiny bit late, but we’ll get onwith the business straightaway.Before the Bill was presented, you indicated yourwillingness to give evidence to the Committee shortlyafter First Reading. The main value in taking evidencefrom a Minister is the ability to put to him thecomments made by other witnesses. It is, therefore,common practice for Ministers to appear before SelectCommittees at the end of inquiries. As you know, wehave been given less than a month to conduct aninquiry into a matter of great complexity, and you nowgive evidence on the eve of Second Reading. Thatmay be keeping to the letter of your commitment, butit is hardly keeping to its spirit. It has meant that theCommittee had to agree its report before having hadthe benefit of testing your evidence.My first question is as follows: the Government haveextended the Session until 2012, so why are yourushing the Bill?Mr Lidington: The Bill is a key part of theGovernment’s legislative programme. We think,therefore, that it is important that we take action toget it on the statute book at the earliest possibleopportunity. Obviously, I regret that you and theCommittee are dissatisfied with the amount of timebetween First Reading and Second Reading. Clearlythe Government’s business managers considered yourrequest for a longer delay, but they had to takedecisions on this Bill in the context of a very heavy,completely committed legislative programme for thewhole Session, taking us up to the next Queen’sSpeech.

Q113 Chair: Could you tell me why the Secretary ofState declined to come to the Committee when weasked him?Mr Lidington: The Secretary of State took the view,which I share, that the Minister directly responsiblefor the Bill and for taking it through its Commonsstages is best placed to come and give the sort ofdetailed evidence to the Committee that you and yourcolleagues are seeking.

Q114 Chair: The Bill will be considered inCommittee of the whole House. No date is yet set.1 Written evidence can be viewed at

http://www.publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/uc633-iii/uc63301.htm

Chris KellyPenny MordauntJacob Rees-MoggHenry Smith

Could you make representations to the businessmanagers to ensure—I say ensure—that we are givenmore time before the Committee stage, specifically sothat consideration of part 1 of the Bill is not takenuntil the second week back after the recess?Mr Lidington: I will certainly pass on that request tothe business managers. My understanding is that thearrangements for the Committee and subsequentstages are under discussion through the usual channelsand they are close to being agreed—the Governmentvery much hope that an agreement can be reachedthrough the usual channels on the best way forward.Michael Connarty: I want to put it on record that Ialso take a very dim view of the fact that the ForeignSecretary did not accede to the Chair’s request tocome to give evidence to this Committee. Certainly inmy experience of the past 12 years of this Committee,including my period of chairmanship, I do not thinkthat such an important matter as this has ever not beenaddressed by the appropriate Secretary of State. I hopethat that message will be carried back. I don’t knowwhat the logic behind it was, and I am in no wayimplying that the Minister isn’t adequate to the task,but I just think that the responsibility lies with theSecretary of State, and he should have been here.

Q115 Chair: We will now move on to clause 18—the purported sovereignty clause. The explanatorynotes in part 3 of the Bill2 have come in fortrenchant criticism from the various witnesses whohave submitted or given evidence on that part of theBill. Not least, there is “great controversy”, asProfessor Tomkins put it, about whether parliamentarysovereignty is, and I quote, “a common law principle”and whether it can be “put on a statutory footing”.3

It seems to us that the explanatory notes are far fromimpartial in this respect.So can you explain—if you feel it necessary to seeksome advice from your legal adviser, we would beinterested to hear that advice—how the explanatorynotes were drafted, by whom and whom youconsulted? If proper research and consultation tookplace, why did they not accurately reflect the range ofsharply contrasting views on the status and scope ofthe doctrine of parliamentary sovereignty? Whywere—apparently, entirely deliberately—relevantpassages from the judgments in Macarthys Ltd v.

2 Bill 106, Session 2010–113 Q 106

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6 December 2010 Mr David Lidington MP, Alison Rose and Ivan Smyth

Smith and Thoburn not included? Lastly, why didyour written evidence state that Thoburn was a Courtof Appeal decision? It certainly was not; it was adecision, at first instance, in the divisional court. Canyou explain how that occurred? Was it sloppiness, orwas it that whoever prepared the explanatory notesdidn’t know the difference?Mr Lidington: Chairman, I perhaps ought to take theopportunity to introduce the two officials who areaccompanying me to this session. On my right isAlison Rose, who heads the Bill team that will betaking the European Union Bill through itsparliamentary stages. On my left is Ivan Smyth, whois from the legal advisers’ side of the Foreign andCommonwealth Office.The first thing that I would say is that I want to makeit clear what we are seeking to do and what we arenot seeking to do with clause 18. What we are notseeking, and never have sought, is to provide someall-embracing doctrine of parliamentary sovereignty.From my brief look at the evidence given to yourCommittee hitherto, it is clear to me that when thelegal commentators have discussed parliamentarysovereignty, they’ve talked not just in terms of therelationship of United Kingdom law to EuropeanUnion law and to the authority of the European Courtof Justice, but have also alluded to the impact of thedevolution settlements and to the impact upon thedoctrine of parliamentary sovereignty of the Europeanconvention on human rights and the decisions of theEuropean Court of Human Rights giving effect tothat convention.Clause 18 is not concerned with those widerdefinitions. It is about the means by which UnitedKingdom law gives effect to European Union law inthe territory of this country. It is declaratory inintention and in substance. The clause states instatutory form what the common law has hithertodeclared to be the position; namely, that there is onlyone reason why European law has effect in thiscountry and why European law is given primacy overdomestic law when the two conflict, which is thatParliament has willed, by a sovereign Act, that thatshould be the position.

Q116 Chair: But you’re saying that in the context ofthe common law principle, are you?Mr Lidington: I’m saying that, in clause 18, we aredeclaring in statutory form what the establishedcommon law position is at present.

Q117 Chair: When I say “the common lawprinciple”, of course, there are those who claim that itis the common law principle, but there are others—and this is the great controversy to which ProfessorTomkins has referred—who say that there is nocredibility to be attached to the argument about thecommon law principle. There are those of us whomight believe—and do believe—that, in fact, youbought the argument of some of our witnesses butdisregarded that of others. I think your legal adviserknows what I mean.Ivan Smyth: The reference to common law in thiscase is by contradistinction to statutory law, in thesense that there is no statement of the principle of

parliamentary sovereignty in statute. That is thecontext in which you have to read the reference tocommon law.

Q118 Chair: We’d like you to answer one or two ofthe other questions about how the explanatory noteswere drafted, by whom, who was consulted, and whatthe basis of the research was. There are a number ofaspects of the explanatory notes that we find ratherdiscouraging, shall we say?Mr Lidington: The truth is that the explanatory noteswere drafted in the way that all explanatory notesare—by officials in Whitehall. Certainly, when it cameto the framing not only of clause 18, but of the Billmore generally, legal advice was taken from acrossGovernment.

Q119 Chair: So why were huge chunks left out, suchas the judgments in Macarthys, and Denning’sjudgment in particular, which was about the wholequestion of inconsistent law, where it is expressly andclearly stated, on the one hand? And why, in theThoburn case, were all these questions aboutconstitutional statutes left out? That was quiteobviously deliberate.Ivan Smyth: If I may answer, Chairman? The purposeof the explanatory notes is to explain what we areactually trying to achieve with the clause, namelyreflecting what the courts have actually said abouthow EU law is imported into the UK through theEuropean Communities Act. There are lots ofcomments and judgments that could be quoted inexplanatory notes, but those included were thecomments which we thought were most germane tothe nature and purpose of the clause as drafted.Chair: Well, some of us think it was very distorted inthe way that it was presented, even to the point ofnegligence, but that is a matter of comment. James,would you like to ask the next question?

Q120 Mr Clappison: What a lot of people in thecountry are concerned about is the constant drip, drip,drip of transfer of power to the European Union. Iknow that this is a different point about sovereignty,but we have had witness after witness come beforethe Committee—highly academic and eminentwitnesses—and when we have asked the samequestion, they have said that the Bill makes nodifference. I think that what you are telling us todayis that what is in the Bill confirms the existingposition, but doesn’t go further.Mr Lidington: No, I don’t agree. It’s not clear to mewhether Mr Clappison’s point refers to the Bill ingeneral, and not solely to clause 18.

Q121 Mr Clappison: The sovereignty clause. One ofthe witnesses said that it might make things worse,but all the others said that it made no difference. Ithink you are confirming that, aren’t you?Mr Lidington: The purpose of the sovereignty clauseis declaratory, and I would disagree with yourwitnesses who argue that it makes no difference. Itprovides a very clear point of reference in statute,which is not there at the moment, for both parties andjudges in any future case where the question of

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autonomous—as opposed to parliamentary—authorityof European law was being debated. It provides themwith that point of reference, written into statute for thefirst time. I think that that will provide an extrasafeguard against any risk that jurisprudence wouldotherwise drift towards according European law someautonomous status, which we do not believe it shouldbe accepted as having.

Q122 Mr Clappison: But, we’re fighting speculationthat may take place in the future. The witnesses toldus that this is the position as it currently stands, andyou’re confirming that.Mr Lidington: Yes, absolutely, and the Governmenthave never argued that this was anything other thandeclaratory.

Q123 Mr Clappison: So, it is a sort of battle againstacademic speculation.Mr Lidington: I think it’s more than academicspeculation. These are arguments that have been used,most obviously in the Metric Martyrs case. They havealso been deployed in cases, admittedly not referringto European law, by judges such as Lord Steyn andLord Hope in other cases, in various obiter. These arelive arguments in jurisprudence at the moment.

Q124 Mr Clappison: They’re dead arguments, withrespect, because they have been knocked on the head.The Metric Martyrs case specifically disagreed withthe proposition that you are advancing. The MetricMartyrs case put things on the same basis that you areputting them today; it knocked the argument that youare frightened of on the head.Mr Lidington: Yes, I think that judgment waswelcome, but I think that that should not prevent usfrom trying to ensure that there are strongersafeguards against the arguments that the prosecutionput in that case succeeding in future.Chair: A Trojan horse is coming out of Pandora’sbox.

Q125 Penny Mordaunt: In the explanatory notesyou say that parliamentary sovereignty is a common-law principle, and so is decided by judges; is that notin itself an attack on the principle that clause 18supposedly protects?Mr Lidington: No, I don’t think that it is. I think thatthis is reinforcing the position that there is only onesource of European law’s authority in this country andthat is Parliament, principally through the EuropeanCommunities Act 1972, but through certain other Actsas well.I know that some have argued that putting clause 18on to the statute book means that there would be arisk that, if it were subsequently amended or repealed,the entire argument that European law relied for itsauthority on Parliament would be harmed. I do notbelieve that that is the case, because then thecommon-law position would still obtain. If clause 18had been in law but was subsequently repealed, wewould revert to a position where it was simply amatter of successive judgments by individual judgesin particular cases that determined the position asregards the authority of EU law in the United

Kingdom. So you would not have that additionalsafeguard that we are seeking to introduce throughthis measure.

Q126 Jacob Rees-Mogg: If I can continue on that,as I understand the evidence we have received, thesupremacy of Parliament is not a common-lawprinciple. As I understand it, we have been told thatthe common law is decided by judges and precedentsand so on, and that against that is the fact of thesupremacy of statute law. Saying that the statute law’ssupremacy is a construct of the common law meansthat the supremacy of Parliament was ultimatelygranted by judges, at some point in the past, andtherefore could be removed by judges. There is aconcern that by saying in the explanatory notes thatthe sovereignty of Parliament is a common-lawprinciple, a mistake is being made, and that thatphraseology needs to be clarified to make it certainthat it is known that statute law is supreme as anoriginal fact , and that it doesn’t have a basis beyondpolitical reality.Mr Lidington: I’ll ask Mr Smyth to intervene, but Ithink Mr Rees-Mogg is tempting me on to veryimportant constitutional territory that goes beyond thispiece of legislation. Clause 18 is about the relationshipbetween European law and United Kingdom law. Wehave not sought to go beyond that into broaderquestions about the origins and extent ofparliamentary sovereignty. That would quite properlybe a matter for the Lord Chancellor, who I am surewould be happy to come and give evidence to theCommittee, if it wished.Ivan Smyth: As I said earlier, the use of the referenceto “common law” in this case is in contradistinctionto statute law. Lord Bingham recognised that in aspeech he gave to King’s College, where he said thatthere is no statute under which parliamentarysovereignty is established. We have to be clear thatthat is the context in which the reference to commonlaw is being used here.

Q127 Chair: I’m sorry, Mr Smyth, but in the wholeof that lecture and, indeed, for that matter, in chapter10 of the book, The Rule of Law, which I am sure youhave read very carefully, Lord Bingham goes out ofhis way to attack several Supreme Court judges withwhom he sat on the Jackson case, specificallybecause—in contradistinction to what you have justsaid—he so fundamentally disagreed with theirapproach.Ivan Smyth: What I am saying is that the context isthat we are actually using this because we can’t defineparliamentary sovereignty by statute. There is nostatute that defines parliamentary sovereignty.

Q128 Jacob Rees-Mogg: I agree with everythingyou are saying, with one exception. As I understandit, “common law” has a very precise definition, but itis being used in the explanatory notes in a veryimprecise way—in a way that most laymen wouldunderstand, but that, to the lawyers, actually meanssomething rather different. I think the concern of theCommittee is perhaps a rather pedantic one: it is thatthe term “common law” is being used imprecisely to




create a false impression about what the statute istrying to do. If this phraseology could be tightened, alot of the Committee’s concerns would be answered.Chair: Before you respond to that, Mr Smyth andMinister, may I quote what Lord Bingham said? Ithink that might help the Committee and the public.He said: “I cannot for my part accept that mycolleagues’ observations are correct. It is true ofcourse that the principle of parliamentary sovereigntycannot without circularity be ascribed to statute, andthe historical record in any event reveals no suchstatute.” He then went on to say, crucially: “But itdoes not follow that the principle must be a creatureof the judge-made common law which the judges canalter: if it were, the rule could be altered by statute,since the prime characteristic of any common law ruleis that it yields to a contrary provision of statute.” Bythe way, he also said that he regards the work ofProfessor Jeffrey Goldsworthy in his books onparliamentary sovereignty as “magisterial”.Mr Lidington: Before Mr Smyth comments, I will justsay again that, while these issues are important, theygo beyond the scope of this Bill. One reason whyclause 18 does not include the word “sovereignty” isbecause it does not have a precise statutory definition.When we have looked for use of the term“sovereignty” in previous statutes, we have found thatit is used to describe territorial sovereignty in, forexample, the Cyprus Act, establishing Cypriotindependence, which refers to sovereignty in thecontext of the British sovereign bases that remain inthat country. Mr Smyth may want to add more.Ivan Smyth: I can say little more to you than what Ihave already said. If you look at the explanatory notesin their entirety, you will see that they explain what isbeing sought to be achieved by putting the principleof parliamentary sovereignty on a statutory footing, sothat people can see that EU law is incorporated intothe UK through the European Communities Act, andthat that is the only means by which it has beenimported into the UK.Chair: One of our witnesses said that he thought thatthe whole Bill was constructed as an invitation tolegislation. It seems to me that you are confirmingthat.

Q129 Jacob Rees-Mogg: Minister, I think I knowwhat your answer will be, but although the clause isnot trying to define sovereignty more broadly, becausethe explanatory notes state that parliamentarysovereignty is a construct of the common law, thatopens it up to further interpretation by the judges.Therefore, the Bill and its notes are taking onsomething that they were not intending to, are failingto answer the broader sovereignty question, andproduce an opening for the judges to get involved, ifyou take the clause in conjunction with theexplanatory notes.Mr Lidington: I think that between them, as MrSmyth said, both the Bill and the explanatory notesmake clear the Government’s intent, as well as thelimits to the intent and scope of this legislation.Certainly, we have never argued that clause 18 is otherthan declaratory. We have never sought to argue thatit goes beyond a description of the means by which

European law has effect in the United Kingdom andis given primacy in the United Kingdom.

Q130 Jacob Rees-Mogg: Finally, is it your view thatparliamentary sovereignty is derived from commonlaw?Mr Lidington: Mr Rees-Mogg is again tempting meon to territory that is properly the—

Q131 Jacob Rees-Mogg: But that’s what theexplanatory notes say. So, do you agree with your ownexplanatory notes?Mr Lidington: What I repeat to Mr Rees-Mogg is thathe needs to look at the content of the Bill and thecontent of the explanatory notes in their entirety. Ithink they make it very clear what the scope and thelimits are to what this piece of legislation seeks toachieve.Mr Cash: I think the problem is that you use theexpression, “the common-law principle”, as if byassertion it is automatically the basis of the principlewhereby EU law takes effect in the UK through thewill of Parliament and by virtue of an Act ofParliament. The problem is that that is a matter ofgreat controversy and, not only that, it goes to thequestion that Mr Rees-Mogg has just raised aboutopening the gateway to the Supreme Court and therather unsatisfactory declarations by Lord Steyn andLord Hope on the issue of sovereignty. I now pass toMichael Connarty.

Q132 Michael Connarty: Thank you very much,Chairman. Let me be quite honest, Minister, aboutwhere I am coming from. Having looked at the Billand the clause, I see it as a piece of window-dressinghiding the fact that the Government promised thepeople of the UK something and are not delivering it.They promised them some definition—a clearstatement, a clear move forward—that wouldsomehow put parliamentary sovereignty back on thestatute book in a way that would be satisfactory tothose who are unhappy with the power of EU law.That is a fact; that is what people thought they weregetting.What we have got from the evidence we have takenconfirms my view. I have asked the same threequestions of all the witnesses, and they are dismissiveof the clause. It does not alter anything. In fact,Professor Allan went as far as to say—I quote—“It isnot, however, possible to place a common lawprinciple on a statutory footing, because the principleconcerns the nature of continuing legislativeauthority.” He then goes on to argue that if any newstatute’s purport was to override or derogate fromdirectly applicable EU law, it would conflict with thelegal consequences of the European CommunitiesAct, and we would be back in the courts, basically,and there would have to be a judgment made in thecourts on the matter.Everyone seems to come to the conclusion that clause18 is only declaratory and a restatement of what isthere already. The evidence of many people is that itis therefore unnecessary. We actually had evidencethat it was in fact dangerous, because it seemed to tryto put some common law into a Bill that would then




cause more complications; as the Chairman has said,that would lead to temptations and invitations tolitigation, rather than clarifying the position. Thequestion is, apart from being window-dressing to tryto pacify those people who were conned into votingfor a Eurosceptic Conservative manifesto, why is theclause needed, since it changes nothing?Mr Lidington: We’ve never argued, as I have saidrepeatedly, that it changes the current law position; itdeclares the current position.Michael Connarty: Not since you got intoGovernment, but you promised before you got there.Mr Lidington: The position, as Mr Connarty knows,is that the coalition programme promised that wewould examine the case for a sovereignty Bill andcome forward with our conclusions, which is what wehave done. I think Mr Connarty is inviting me tocomment on the Conservative party manifesto. Myrecollection of that document is that it said that theConservative party would enact a sovereignty Bill tomake sure that ultimate power rested with the BritishParliament. Now, I would argue that clause 18 doesthat by making it clear in statutory form, for the firsttime, that the only source of authority for Europeanlaw and the European Court of Justice in the UnitedKingdom is the deliberate Act of a sovereignParliament. It therefore provides a statutory test thathelps to guard against any risk that the currentposition, established by the judges in successive cases,might be eroded through future judicial decisions.That is the purpose behind this.Mr Connarty invited me to look at the hypotheticalsituation in which a future Parliament might decideexplicitly to change the law in some way that was atodds with the United Kingdom’s obligations under theEuropean Union treaties. Now, what I am clear aboutis that Parliament has the right to do that, if it sowishes. That would clearly precipitate a politicalcrisis, because the UK would be acting in a way thatwas quite deliberately at odds with binding treatycommitments that we had entered into. There wouldhave to be a political solution if a political argumentwere to take place.

Q133 Michael Connarty: You haven’t quiteexplained to me why the clause is needed, given thatall the evidence we had was that without clause 18,we would be in the same position anyway. You wouldhave to have this same judgment made and challengesmade in the courts. Without clause 18, there wouldstill be the same argument about where we stand, inrelation to the dualist position that we are in at themoment, and about many other things—there is theargument that there is never such a thing assovereignty of Parliament anyway, because it isalways moderated by the courts and the rule of lawand all the other factors. So it does not add anything,but it confuses people, because it seems to tell peoplethat the promise has been delivered, and that clarityhas been added to the law by having this clause.Everyone has heard evidence saying that it does notlead to clarity at all. So why is it needed, apart fromas a fig leaf for the Government’s promises?Mr Lidington: I think it does give the clarity that MrConnarty seeks, in the way that I have described on a

number of occasions so far this afternoon. Withoutclause 18, we would be relying entirely on thecontinuing good sense of the judges, case by case,to ensure that European law was not accorded someautonomous authority in this country, not dependenton Acts of a sovereign Parliament. We are providinghere for the first time a clear statutory point ofreference for any future court to consider if thesearguments come before it.

Q134 Mr Clappison: I am relieved to hear, Minister,that you feel that Parliament still has the right towithdraw from the European Union if it wishes to, orto act inconsistently with the European Union, but Ihave to say there seemed to be a note of doubt in youranswer. On the question of the position of Europeanlaw, this would not affect the supremacy of Europeanlaw over UK law as matters stand, would it? Europeanlaw would take precedence over UK law, as mattersstand. United Kingdom law that was found to beinconsistent with European law by the European Courtof Justice would be struck down. The same wouldapply to any future European law that was madewithin the competences of the European Union. Thatwould remain the case, wouldn’t it?Mr Lidington: Yes, those statements are true and, ofcourse, the reason why European law has that primacyis because that was expressly provided for in theEuropean Communities Act 1972.

Q135 Mr Clappison: That primacy will continue,and the areas within which there is primacy can go onexpanding as they have done since 1972, since when,as we all know, they have expanded greatly?Mr Lidington: The areas of primacy are determined,as Mr Clappison said, by the competences given tothe European Union by successive treaties. Thepurpose of much of the Bill is to provide additionalprotection by way of a requirement for parliamentaryauthority, or for the authority of the people in areferendum, if changes are proposed to add to thosecompetences in the future.

Q136 Mr Clappison: As we all know, there isalready a very long list of competences within whichthe European Union acts. We have more questions onthat later. This is a political question. You talk aboutsafeguarding the present position, but it is the presentposition that concerns so many people, isn’t it?Mr Lidington: Yes, and it is certainly true that theGovernment have accepted that the positionestablished by the various treaties up till now, and upto and including the Treaty of Lisbon, is our startingpoint. We work within that legal framework. Both MrClappison and I remember voting against theratification of the Lisbon Treaty when that camebefore Parliament, but the Government have taken aconsidered view that, Lisbon having been ratified, wework within that framework.

Q137 Mr Clappison: I support what the Governmenthave done on that; I think it is actually correct, butpresentation-wise, there has to be some care taken,doesn’t there, that we don’t mislead people intothinking that this Bill does more than it does, with




ringing declarations about sovereignty and theultimate sovereignty resting with Parliament, whenthe present position will continue to prevail?Mr Lidington: I don’t think those two points arecontradictory. The ultimate sovereignty does remainwith Parliament, and I think that clause 18 of the Billentrenches that position in a way that has not been thecase up till now; but it is certainly the case—neitherthe Foreign Secretary nor I have claimed otherwise—that the Government’s starting point is the legalframework and the competences established byexisting treaties.

Q138 Chris Heaton-Harris: Following up on thispoint, the Law Society says it’s not convinced aboutthe need for a declaration of parliamentarysovereignty, given that there’s already a principle incommon law that Parliament is sovereign. It’sconcerned to ensure that the consequences of thedeclaration of parliamentary sovereignty are fullyassessed, together with the principle of primacy ofEuropean law, and is concerned that legal certainty isundermined by the clause. What would you say to theLaw Society?Mr Lidington: I don’t think it is right in saying thatthe doctrine of ultimate parliamentary control isundermined. For the reasons I’ve previously given, Ithink that, on the contrary, it is strengthened if clause18 is enacted. I don’t think, either, that I’m persuadedby the argument that, because the courts up till nowhave upheld the position that we are seeking toembody in statute, in clause 18, we would be rightsimply to rest on the assumption that that is theposition that will always be upheld. I feel that we willbe on surer ground if we have the additional safeguardprovided by statute.

Q139 Michael Connarty: A very simple question:let’s put it in terms for people who are interested inthe promises made at the election, who might thensay, “What is this law going to change for us?” If theBritish Parliament passed a law that contradicted apower given to the European Union under either theEuropean Communities Act or the Lisbon Treaty, butthat did not contain a clause amending either of thosetreaties, or repealing them, would you expect the UKcourts, without having to go to the European Court ofJustice, to strike down that law and say that it cannotbe applied and that EU law should be applied instead?Mr Lidington: I have to preface what I say and makeit clear that I am not a lawyer, but my belief is that inthose circumstances, if the British Parliament werequite specifically to pass a statute that repealed ordisapplied a particular piece of European legislation,the British courts would follow that decision byParliament here.The consequences, though, would be that theEuropean Commission would almost certainly begininfraction proceedings; and we would, I think, havean unsustainable position in front of the EuropeanCourt of Justice, which would be likely to apply thevarious penalties incurred by any country that was indefault of a particular piece of binding Europeanlegislation. So the position that the Government of theUnited Kingdom and the Parliament of the United

Kingdom would be in, in those circumstances, wouldbe a matter of whether they wished to embark upon acourse of action that would certainly lead to a majorcrisis in relations between this country and theEuropean Union.It is no part of the intention of the present Governmentto seek to provoke such a crisis, and I cannot, off thetop of my head, think of a hypothetical situation inwhich a future British Government or Parliamentmight wish to follow the course that Mr Connarty hassuggested, but I think that the sequence of eventswould be as I have described.

Q140 Chair: Could I ask a question on that? Afterall, we have instances—we know that they are goingon in the German constitutional court at themoment—on bail-outs, the stability and growth pact,the question of constitutionality, and the current issueof the Roma and the French. In all those cases, areyou not really exaggerating when you talk aboutprovoking a crisis? I think that this is just a lot offlummery, if I may say so. It is not going to constitutea crisis; it is simply that if Parliament decided thatit wanted to repatriate the Working Time Directive,because it was in our national interest, that shouldprevail.Michael Connarty: Chairman, I was thinking moreof the common fisheries policy, and instructing thatall fish that are caught should be landed and notthrown back into the sea, which has been ongoing forthe past 20 years.Chair: We could draw up quite a substantial list.Mr Lidington: I am sure that everybody here coulddraw up their own list. I am sure that if we weretalking to our counterparts in a number of other EUcountries, they would have lists of their own, whichmight include single market measures that weregarded as being very much in the interests of thiscountry to have at a European level. That is thebargain that EU membership entails.I have lost my train of thought for the moment.Chairman, you had a question.Chair: It was with respect to the question of—Mr Lidington: The Germans and the Germanconstitutional court.

Q141 Chair: It was also the question of nationalinterest and which prevails?Mr Lidington: Whether national interest prevails is adecision that Governments and Parliaments inparticular countries have to take, bearing in mind theconsequences for their membership of the EuropeanUnion. In your question, you referred to the Germanconstitutional court. It is striking that so far, althoughthe German constitutional court under thecompetence-competence doctrine has declared that itpossesses the ultimate right to determine whether ornot a piece of European law breaches the fundamentallaw of Germany, it has not actually put that to the testin terms of a particular judgment. The constitutionalcourt has rather shied away from ever defying a pieceof European legislation or the authority of theEuropean Court of Justice.




Q142 Chair: We might have a moment to considerthat when we look at the implications of extending thefinancial stability mechanism to Portugal, Spain andother countries. That would be an interesting one.By the way, I would just mention the fact that I thinkyou voted for my clause, which had a“notwithstanding” provision in it, when we were inopposition. I am sure that that is worth putting onthe record.Mr Lidington: I’ll have to check the Division list.Chair: I think you’ll find that I’m right. MichaelConnarty, would you be good enough to look atquestions 21 and 22?

Q143 Michael Connarty: One of the things thatcame up in the evidence, being volunteered by ourinvited legal brains, was a problem about thelegislation’s proposed system of referendum locks—itis as if the sovereignty of future Parliaments is beinglimited by the Bill in relation to legislation on the EU.Do you not think that recourse to a referendum sits illin this Bill, which is supposed to be designed to placeparliamentary sovereignty on a secure footing?Mr Lidington: The Bill is designed to put on a moresecure footing the position that European law hasauthority in this country only by virtue of Acts ofParliament, but it also seeks to do other things. It isquite deliberately providing for Parliament to havemore of a say in how decisions are taken by Ministersin the European Union on behalf of this country. Forexample, there is a provision in the Bill that any futuretreaty change, no matter how minor, must require afull Act of Parliament for ratification rather than, as issometimes the case under our present law, simply aresolution of the two Houses.We have also taken a decision that it is right—werean attempt to be made at a further treaty change totransfer competencies from this country to theEuropean Union, or to give up important vetoes overdecisions on particular areas of competence—thatratifications should have the authority of the Britishpeople freely expressed in a referendum. It is a limitnot so much on Parliament as on the power ofMinisters to take decisions in the future.In future, Ministers will have to have much moreregard to opinion in Parliament and in the country. Itis, of course, right—I think this lay behind MrConnarty’s question—that since no Parliament canbind its successor, it would be possible for a futureParliament to decide that it would repeal or amend thislegislation and decide that it did not wish to requirereferendums, or it wished to give the Government ofthe day more power to take through new Europeaninitiatives unchecked. I think, though, that the politicsof such a decision would be horrendously painful forthe Government concerned. It is that political cost toany future Government of trying to get Parliament togo back on the safeguards that we are providing herethat offers the best protection that this is going to beenduring.Michael Connarty: I am sure we’ll come back to itin other questions, Chair.Chair: I would like to turn to the issue of part 1 of theBill, which is the restrictions on treaties and decisionsrelating to the European Union.

Q144 Henry Smith: It begs the question: wouldn’t aproper sovereignty clause be the answer to futurepolitical angst? With regard to some of the issueslisted in clauses 4(1) and 6(4), how can you guaranteethat there would be sufficient voter turnout in a movefrom a special to an ordinary legislative procedure? Inreality, a substantial enough turnout would not occur,would it?Mr Lidington: I would put my answer in two parts. Ithink that if there were to be a move to amend thetreaties by means of the ordinary revision procedure,that is such a time-consuming and politically arduousprocess involving, as it does, not only a fullintergovernmental conference but—unless theEuropean Parliament waives its right to insist onone—a convention involving EP member states andnational Parliaments all debating the contents of thetreaty. It is not going to be attempted unless it is apackage of fairly ambitious treaty changes of the sortthat we have seen most recently with Lisbon andpreviously with Nice, Amsterdam and Maastricht. SoI think that, in those circumstances, the turnout wouldbe pretty large, because the issues raised would be soobviously of political importance, and the debate overthe content of such a new treaty or set of amendmentswould have been going on for a considerable time.Mr Smith’s concern about a ridiculously low turnoutfor a referendum might have more weight if we weretalking about the simplified revision procedure wherewe can have a much more narrow treaty change, orthe passerelle clauses where we have also providedfor a referendum lock. In answer to that, I would saytwo things. It would be illogical for us to say that thetransfer of new competencies or powers to the EU isso politically important—over, say, common foreignand security policy—that we should have areferendum, if that is done by the ordinary revisionprocedure. But no referendum should apply if thesame objective is to be secured through simplifiedrevision procedure, or through a passerelle clause,which is possible in respect of common foreign andsecurity policy through the surrender of vetoes. Thatwould almost invite a Government that wanted to seesuch a change take place in the future to go for oneof the latter routes, rather than the full treaty-makingprocess of ordinary revision procedure.Secondly, we have made a distinction in the Bill, in alimited number of areas, between those things that aresignificant enough to attract a referendum and thosethat are not. There is a blanket referendumcommitment for any transfer of or addition tocompetence, but, in a limited range set out in clause4 and when we come to the passerelles, we have triedto distinguish in detail in the Bill between those thingsthat we think are politically significant—on which,therefore, it is right to ask the public to express a viewand on which, for that reason, the public will bewilling to turn out and vote—and those things that wethink are less significant.The only other thing that I would add to Mr Smyth isthat any talk of treaty change presupposes that theGovernment of the day have decided that they wantto take part in it, because, obviously, if the BritishGovernment of the day are against such a treaty




change, they have a complete right of that veto, sothat change would not happen.

Q145 Henry Smith: On that point, although thequestion might be on a specific area, would it notinevitably become a referendum on this country’smembership of the European Union?Mr Lidington: No, I don’t think it would. I thinkpeople are mature enough to take a decision on thebasis of the choice put in front of them. If, to take anexample from the news at the moment, there were tobe a proposal in the future that the United Kingdomshould join the euro, it would be quite right that thatdecision should be put to the people, because it wouldbe so far-reaching in its long-term effect on thiscountry and the conduct of economic policy. I thinkthat the people would distinguish between wishing tojoin the euro and wishing to remain a member of, orleave, the European Union as a whole.

Q146 Henry Smith: Finally for now, on some ofthose more technical points, when the Bill was beingdrafted was consideration given to an alternativemethod for determining whether some of those moretechnical competences could be transferred or not—atwo-thirds majority of the House of Commons, forexample?Mr Lidington: We looked at a whole range ofalternatives at different stages of the Bill’spreparation. At the very beginning, we looked at theoption of not specifying in any detail the occasion onwhich a referendum would be required, but insteadwriting in a test expressed in more general languageand, therefore, leaving it much more to the discretionof the Government and the Parliament of the day todecide whether that test of significance had been met.We looked at a number of options in terms ofparliamentary safeguards. The Government’scollective decision was that the distinctions set out inthe Bill, between a referendum requirement, arequirement for an Act of Parliament and arequirement for an affirmative resolution of bothHouses, is the most sensible way in which to proceed.

Q147 Chair: You speak of competences and powers,and, in fact, the coalition agreement and, for thatmatter, other explanatory notes make the distinction.A competence is generally understood to be aprovision that enables, under the legal base inquestion, the establishment of a new Europeanjurisdiction. A power is distinguishable from that andis, shall we say, of a lesser order. Let’s leave to oneside competences, on which I don’t think there isany dispute.Why is it that with respect to the word “power”, itis assumed, so it would appear, that in terms of theimplementation of the Lisbon Treaty, which doestransfer matters such as are contained in theinvestigative order, for example, or, in the past, theWorking Time Directive, those powers are not to beregarded as an extension of power? When you’redealing with the past, quite clearly you’re dealing witha situation that would not give rise to a referendum inthe future, but when you’re dealing with something

where you’re implementing Lisbon, are you notthereby transferring power?Mr Lidington: No. We’ve made a distinction betweentwo things. First, we have accepted the Lisbon Treatyas our starting point. We’ve therefore accepted thatthe—Chair: I’m talking about law, not policy.Mr Lidington: Yes, but this goes to the point thatyou’re making, Chairman. We’ve accepted not just theareas of competence set out in the Lisbon Treaty, butthe means by which those competences are translatedinto particular European Union measures—pieces oflegislation—so if something takes place by qualifiedmajority vote, we have accepted that that is how theUnited Kingdom Government have to operate, and wehave to seek to get what we want through that process.Power, as you rightly say, is not defined in the treatiesor European law in the way that competence is a wellunderstood concept. The decision that we took was todefine power in terms of important and irreversiblechanges to the way in which decisions were takenwithin the European Union to take decisions and tobring forward legislation, so in the Bill, as you willhave seen, we use the term “power” largely to applyto the surrender of vetoes, to moves away from thespecial legislative procedure to the ordinary legislativeprocedure, and to measures that would take us from aunanimity requirement to a qualified majority vote.We are not seeking to impose new rules on measureswhere the EU already has competence to act, providedthat there is unanimity. We’re saying that if a BritishGovernment sign up to that, that is fine. To go backto my common foreign and security policy point, the27 member states were able to agree on a commonprogramme of sanctions against the Iranian nuclearprogramme. That was done under the authority of theexisting treaty arrangements for common foreign andsecurity policy. We’re not seeking to question that.What we are saying, though, is that if there were aproposal in the future that that type of decision shouldbe taken by QMV rather than by unanimity, thatwould attract the locks in the Bill.

Q148 Chair: So it’s really a sort of grand cherry-picking operation, isn’t it?Mr Lidington: No, not at all.

Q149 Mr Clappison: You were telling us earlier,Minister, about competences and what Ministersaccepted. You had no choice but to accept them: thatwas the European law to which we all signed up andwhat was included in the Treaty of Lisbon. On thequestion of competences, could you tell us this: if aquestion arises about whether the EU is acting withinits competences in an area where there is qualifiedmajority voting—or even where there is unanimity,but let’s say qualified majority voting—who decideswhether the EU is acting within its competence ornot, ultimately?Mr Lidington: Well, the European Court of Justicedecides on the interpretation of European law, but theEuropean Commission, the Council, can take actiononly on measures where competence is provided forin the treaties.




Q150 Mr Clappison: But the question whether thetreaties provide that competence or not—whether itcan be interpreted so as to provide the competence tomake the decision or to pass the legislation inquestion—is entirely for the European Court ofJustice. Everything that you’ve told us is correct, butmakes no difference whatsoever.Mr Lidington: I disagree very strongly with MrClappison’s last proposition. He is, of course, right inwhat he is saying by implication, which is that therehave been occasions in the past where, for example, atreaty base involving the single market was used tojustify a measure that the British Government of thetime thought properly ought to have been on a healthand safety basis. At that time, from memory, I thinkwhat we favoured would have attracted a requirementfor unanimity, whereas what the Commission,supported by the Court of Justice, wanted was a singlemarket treaty basis, which would be dependent uponqualified majority voting instead.Mr Clappison: Well, you’ll be happy to know thathealth and safety is now an EU—Mr Lidington: That is a matter of subsequent treatychange that has put that beyond any doubt.To argue that this makes no change at all is quitewrong. I think that one of the things that is true aboutLisbon, for all its imperfections, is that it does definethe scope of European Union competence much moreprecisely than in the past. It is not just the UnitedKingdom, but other member states that are prettyvigilant now on avoiding any risk of competencecreep. That is something that the European AffairsCommittee of the Cabinet is keen to keep under veryclose scrutiny, and I am sure that this Committee iscommitted to doing so as well.Mr Clappison: We were invited to do the same thingwith the pillars, actually, back at Maastricht, if youcan remember.

Q151 Michael Connarty: To try to bring us backnow to the level at which people might be discussingwhat is proposed, a question was asked by my fellowCommittee member, Henry Smith. I just cannotimagine—I would like to ask the Minister to try toestimate—what interest there would be and what kindof turnout there would be for a referendum on, forexample, the decision to move from majority andunanimity to qualified majority voting on somethinglike an EU carbon tax, which is an example that hasbeen suggested.It is such a huge list that it seems to be overpoweringpeople with all the options that referendums might beused in. I don’t particularly find myself attracted toreferendums at all. I think that Lisbon, for example,was well dealt with in the House and would not havereceived such thorough scrutiny if there had been areferendum run by the red tops and the populartabloids. In that situation, if we decided to havereferendums, how can you justify a referendum on anissue like that, where it would cost a lot of money andwould not be likely to attract many people? It comesback to the point that it would have to be—it would nodoubt be generated by the very same popular press—areferendum on membership of the EU, regardless ofwhat was the actual question on the paper, which

would be about moving from unanimity to qualifiedmajority voting on a very specific area of policy.Mr Lidington: I disagree with Mr Connarty aboutLisbon. I actually think that one reason, but not thesole reason, for the depth of public disaffection withEuropean Union membership in this country is thatpeople feel that they were promised a referendum onLisbon and then were denied that, especially whenthey saw their neighbours in the Irish Republichaving that.

Q152 Michael Connarty: I don’t deny that at all insuch a large issue like that, but I am talking aboutwhat is in this Bill, not what is in the past.Mr Lidington: Let’s go to the carbon tax example thatMr Connarty cited. What the proposition beforepeople would be is that not just for a particularmeasure to do with carbon tax, but permanently, inthe future, decisions about environmental taxation atEuropean level could be taken by qualified majorityand the United Kingdom outvoted on measures thatwould impose new or additional taxes upon thepopulation of the United Kingdom, without the UnitedKingdom electors being able to get rid of thepoliticians who had been responsible for imposingthem. That seems, to me, to be something that wouldattract the public to the ballot box.

Q153 Michael Connarty: You would only, as aGovernment, put that to a referendum when you haddecided that you want to do it.Mr Lidington: Yes.

Q154 Michael Connarty: So, it would lie in thepower of the Parliament not to do it, and in the powerof the Government not to do it. Is that not thelegitimate purpose of a sovereign Parliament with aGovernment, that you do not do those things, that youwould only put a referendum to the people when youdecided as a Government to do them? The Bill is allsuperfluous, because surely the Government’sresponsibility is to say, “We would not give that powerto the European Union at any time.”Mr Lidington: I would hope that that is the positionthat a future Government would continue to take.Michael Connarty: So do I.Mr Lidington: The point of having the referendumlock is to guard against the risk that, in future, powerswould be transferred to the European Union, withoutthe consent of the British people in the way that hashappened in the past. I very much want to see the UKnot only remaining a member of the EU, but being avery active participant as well. One of the difficultiesin us taking on that role with confidence has been thefact that people in this country feel that vital decisionshave been taken in the past, about which they werenot consulted and about which they ought to have hada say, and about which the populations of otherEuropean countries have been able to have a say.Chair: Like the Maastricht Treaty.

Q155 Chris Heaton-Harris: Minister, as you know,first of all, I do not think that the Bill goes far enough,but you would expect me to say that based on ourconversations in the past. I am very interested in a




couple of detailed aspects of the Bill. Anybody whohas followed European law understands thedescription of the salami slice. That happens whenEurope wants something and it cannot get the bigprinciple agreed by everybody at the start. It tends tocut away and get little pieces of it all the time, and allof a sudden you have what you did not want in thefirst place.We are very happy that the European PublicProsecutor’s Office is covered by the Bill, because weare not in favour of it. Having been involved in thedebate on the European Public Prosecutor when it firstcame up, what were the significant points in thatdebate? They were the European arrest warrant—gotthat—and European investigation orders—got them.In lots of these issues in justice and home affairs wehave this opt-in, opt-out thing going on, whereParliament does not have much of a say and nor doesanyone else. I am concerned that if those things arenot properly covered by clause 6, a future Governmentcould allow the European Public Prosecutor’s Officeto be established by other member states, without theUK. At the end of the day, we might say, “Well, we’vegot it anyway” and seek to opt-in. The Bill seems toapply no parliamentary or public control on such acourse of action. Can you tell me where I can find thatin the Bill?Mr Lidington: It is in clause 6(4), paragraphs (c) and(d). Those are the key parts of the Bill in this matter.If other member states went ahead and set up theEuropean Public Prosecutor’s Office, as Mr Heaton-Harris suggests, there would still, under the Bill, needto be a referendum before a future Governmentdecided to opt into that particular operation. Were wea participant in a future EPP, the referendum lockwould still apply to a move to enlarge the scope ofthe European Public Prosecutor’s function.

Q156 Chris Heaton-Harris: The Tampere summit,ages ago, described what a European PublicProsecutor would be and, through agreements that weare opting in or out of, we are now getting the wholething, without the icing on the cake, which is theEuropean Public Prosecutor’s Office. I am wonderingwhen Parliament and the people of the UnitedKingdom get their say on those issues.Mr Lidington: Parliament can have its say on opt-ins that were part of the Lisbon Treaty through thecollapsing of the pillar structure, partly by thevigilance and actions of the Committee.Mr Clappison: No, I’m not having this.Mr Lidington: It is open to the Committee to ask fora debate and table a motion that is amendable.

Q157 Mr Clappison: The Minister is making a veryfair point in a very fair way, but there is a big “but”here. The procedure for dealing with opt-ins is totallyunsatisfactory. We have had two significant ones sofar in this Parliament. I don’t think that the first, theEuropean investigation order, even came before thisCommittee for it to decide whether or not to have adebate, for various reasons to do with the compositionof the Committee. The second one, the Europeaninformation order in criminal proceedings, was a very

important order indeed, and we debated it in aCommittee on Thursday.Chair: Last week.Mr Clappison: Last week. It was set up at the lastminute so that a Minister could go to Brussels the nextday and give his assent to it. All we could do was takenote of that at the end of the Committee—there wasno point in having a vote—and it is down on the OrderPaper for this evening, without debate, in the House.I am not sure whether anybody can vote on it tonight.I think that that is it, as far as that legislation isconcerned.Could you, by way of an amendment, look at thewhole question of the opt-ins, which are significant?At the moment, we have an opt-out as far as therelevant chapter is concerned. Could we have at leasta parliamentary vote under the parliamentaryprocedure that you set up in this Bill? That would be amuch more satisfactory way of dealing with things—where we can have a resolution in front of bothHouses of Parliament, a proper debate and a vote onany opting-in to the home affairs chapter; unless youare going to tell me that what I have just described iscovered by paragraph 9, but I don’t think it is. I thinkit is very limited and it looks as though your expert—your assistant—agrees with my proposition. Can youlook at that as an amendment?Mr Lidington: A number of justice and home affairsareas are caught by the various provisions—we cango into those if Mr Clappison or other members of theCommittee wish—but the question was about the JHAopt-in procedure under Lisbon. I think that there aretwo practical difficulties with what Mr Clappison issuggesting. One is that there is a strict time limitattached to our opt-in—that we have to take thatdecision within three months. It takes theGovernment, through interdepartmental consultation,some time to work out what their own assessment ofa particular measure is once it is published. The otheris that we would expect a lot of these—perhaps 40—in the course of a year. We can’t be certain of thisbecause it is still new, but our estimate is that perhaps30 to 40 JHA measures may be brought forward inthe course of a year. There is an issue of providingadequate parliamentary time, but I will take note ofwhat Mr Clappison has suggested.Mr Clappison: Can I come back on those? The firstpart of that was quite unsatisfactory, if I may say so.What you are saying is that we are all too busy to bebothered with Parliament. That’s basically what youwere saying—we can’t fix up time for a parliamentarydebate within three months because ourinterdepartmental consultations are more important.The second point, which I can imagine a Governmentbusiness manager looking at, was that there might bequite a lot of these things. If that’s the case and if theyare not controversial, presumably they will go throughthe House without too much trouble or too much timebeing taken on debate. If there is somethingcontroversial in them, we can debate them. That’swhat we are here for as MPs, rather than to act asrubber stamps.

Q158 Henry Smith: Following on from that point, Ithink it unsatisfactory that the answer to the potential




transfer of some fairly fundamental principles is thatwe don’t have enough time for due process in thisplace. Following on from some of the matters thatMr Connarty was talking about, isn’t that even morereason—we are talking about the points made by MrClappison and Mr Connarty—to have a propersovereignty clause, rather than clause 18 as currentlyconstituted?Mr Lidington: What is meant by “proper sovereigntyclause” in this context?Henry Smith: Something wider than the scope thatthis Bill is fairly narrowly—Chair: Something that enables us to go back into theEuropean Communities Act, any treaty or, for thatmatter, any provision made under a treaty, in line withwhat Lord Denning had in mind, and simply to saythat we would apply the principles of McCarthys Ltdv. Smith in that way, and to guarantee that, if wewanted to repatriate in the national interest, we wouldactually do so. However, I think we can move on fromthat to Kelvin Hopkins, because he has somequestions.

Q159 Kelvin Hopkins: Thank you. In his evidenceto the Committee, Professor Hix says that increasingthe constraints on British officials in COREPER andour Ministers in the Council when making decisionscan strengthen the hand of our delegates innegotiations.4 How far are the domesticconstitutional constraints intended to strengthen theGovernment’s negotiating hand in Brussels?Mr Lidington: Our prime motivation here has been togive the British electorate and the British Parliamentnew powers over how Ministers take decisions in theEuropean Union, which the people and Parliamentdon’t have at the moment. The question ofstrengthening our negotiating hand is a secondaryconsideration. It is not what motivated us to bringforward the Bill in the first place. I think that anawareness that a particular change has to win approvalfrom Parliament, or from the British people, or both,is a useful check to have. I have noticed that othercountries represented at Council of Ministers meetingsare very concerned about whether a particularproposal might cause a referendum in their ownnation, and that is something their colleagues aroundthe table take account of in discussion.

Q160 Kelvin Hopkins: Professor Hix also says, bycontrast, that the member states might start to developcreative ways to “move forward without the UK.” Iwould not describe it as moving forward, but that iswhat he says. Indeed we heard from James Clappisonabout the salami-slicing approach to get throughthings that we don’t like.Mr Lidington: There are provisions, as Mr Hopkinsknows, in the treaties for an enhanced co-operationprocedure. There are elements of variable geometrywritten into the treaties, including our opt-out fromjustice and home affairs matters, including our beingoutside Schengen, including our being outside theeuro. Denmark and the Irish Republic have certaincomparable arrangements over particular areas of EUcompetence. But I think it implausible to assume that4 See HC 633-II, Ev 44

the other member states and the Commission aregoing to want to find a way to press ahead withabsolutely everything agreed at the level of the 26,pushing the United Kingdom into a corner on its own.It has been striking, for example, that in the debateswithin the EU about economic governance, theGerman Government, in particular, have said thateven though Britain is not in the euro, it is veryimportant that the United Kingdom is at the tablewhen important discussions about economic strategyare taking place.

Q161 Kelvin Hopkins: My own view is that if weare sidelined in negotiations, we have a right to say,“Well, if they come to a conclusion, it should notapply to us.” That is not simply QMV, but if theynegotiate something without our being involved andthey sideline us, we can just say that it does not applyto us.Mr Lidington: That is self-evidently true. If there isprovision under the treaty for enhanced co-operationand for other member states to go ahead and act ontheir own, and it is we who decide to remain outside—it is not necessarily us who would be the country whowished to remain outside the enhanced co-operationprocess—then by definition, that is not going to applyto us.

Q162 Kelvin Hopkins: This approach could lead—we have talked about a two-speed Europe—to a multi-speed Europe. Even now, to an extent, some couldargue that we have a pick-and-mix Europe and wehave chosen to have derogations on a number of areas.There are some countries that are outside the euro,some that are in, some that are unlikely to join andsome that want to get out of it. All sorts of possibilityarise. Would that not lead to the kind of Europe thatmany of us would want, which would be a looserarrangement with a higher degree of independence fordemocratic states?Mr Lidington: I think that what one journalist calleda Europe of consenting adults is a good model to havein mind. I think that the larger and more diverse theEuropean Union becomes, the more it will make sensefor different countries to co-operate more closely onparticular areas of policy. We see this, for example, inthe way in which the Baltic and Scandinaviancountries are getting together to talk about a Balticstrategy and Romania, Bulgaria and the Visegradcountries are talking about a Danube and Black seastrategy, to be pursued within the ambit of the EU, butwhich particularly involves those nations.At the same time, though, I think I have a word ofwarning for Mr Hopkins, which is that there are someaspects of the EU’s work—most obviously the singlemarket—where it is very much in the interests of thiscountry that we maintain a Community-wideapproach, rather than allowing individual countries toopt in or out of single market measures. There aresome countries that would love the chance to havemore state aids, or to impose new restrictions uponfree trade. That’s not in the interest of the UK.

Q163 Chair: Would you not agree, on that point,with Professor Roland Vaubel of Mannheim, who says




that under the single market and the majority votingarrangements countries have developed a verysophisticated method of what he calls regulatorycollusion, whereby they gain comparative advantageby using the majority voting system in order toenhance their own particular interests, so that this ideathat somehow we’d be held hostage is countered bythe fact that countries—and Germany in particular—are using the majority voting system in a way that’svery satisfactory to their own national interests?Mr Lidington: I think the truth is that every one ofthe 27 member states of the EU pursues its ownnational interest extremely vigorously.

Q164 Chair: You mean to get further and deeperin—Mr Lidington: I think that the United Kingdom needsto be more adept at using the European system inorder to get our way—to pursue our interest. I wouldlike to see, for example, a much higher priority beinggiven in the Commission’s work to new measures toextend and deepen the single market; to measures—as President Barroso declared as his intention—to cutthe costs of European regulation upon small andmedium-sized enterprises; to enlarge the scope of theEU’s free trading agreements with other nations andregions of the world. Now, not every member state isgoing to share our ambitions, but we need to be veryenergetic and active in building alliances in order tosecure those objectives, and I’m confident we can doso.

Q165 Kelvin Hopkins: I think we are digressing intowhat are political debates. I would like to debate thesingle market any time; but, on the principle ofderogations, we have a number of those already, butthey’ve been negotiated at the time they’ve beenimposed. Is it not a possibility—I would certainlyhope it would be—that we could give notice that wemight seek further derogations? My particularconcerns—and I’ve mentioned these many times inthe Chamber—are the common agricultural policy,which I think is a nonsense, and the common fisheriespolicy, which I think is a nonsense. But at least keepthat possibility of further derogations open, so that wecould have something that would certainly be to thebenefit of Britain.Mr Lidington: As Mr Hopkins knows, there’s anongoing process of negotiation. It think it’s probablyfair to say that the EU is engaged in a process ofpermanent negotiations. Obviously the option ofderogation from particular measures, either permanentor transitional, is something that can be consideredduring any particular discussion of one or otherdossier.Kelvin Hopkins: Oh well, that’s good. I shallcontinue to pursue those two issues.

Q166 Mr Clappison: Two quick points, Minister.You said a few moments ago how frustrated peoplefelt when they saw other countries havingreferendums, and they weren’t able to have one. CanI ask you about the process for the way in which thetreaty deals with the accession of new member states?Under clause 4(4) it would seem that if a treaty only

involves the accession of a new member state it isprovided that there won’t be a referendum. I canunderstand the problem that you may have with non-controversial countries, perhaps small countries,acceding to the European Union, but one can think ofexamples without too much difficulty of where theaccession would be controversial, and where therewill certainly be referendums in other countries, someof which are required by constitution and others whichI believe have been promised in certain cases.Wouldn’t this rule out having a referendum in thosecases?Mr Lidington: Yes, it would in terms of thislegislation. The reason is that we have followed aparticular principle; which is that a referendum shouldbe required where there is a transfer of competence orpower, and an accession treaty transfers competenceand power from the acceding state to the EU. I wouldadd, which may give Mr Clappison some heart, is that,of course, every accession treaty will have to beratified by a separate Act of Parliament here.Mr Clappison: That is the case already.Mr Lidington: Yes, and what that means is that,although I personally sitting here today would beagainst imposing such a requirement, it would be opento Parliament when enacting that Bill to ratify anaccession treaty, to introduce an additionalrequirement for a referendum in that case.

Q167 Mr Clappison: But, of course, as we all know,you are still going to have a problem. If there isn’t areferendum, and people in other countries are havinga referendum and people here aren’t, people are goingto say, “Why aren’t we having one?”Mr Lidington: I think that one of the great triumphsof the European Union has been enlargement—aBritish initiative—and that has entrenched the rule oflaw, democracy and human rights in parts of ourcontinent where those traditions were crushed formost of the 20th century.

Q168 Mr Clappison: No doubt those argumentscould be made but people could have their own sayon this referendum in a particular case. Time isrunning short, so can I take you on to another matterwhere there has been a lot of adverse press comment?The witnesses we had were scathing. Under some ofthe provisions of the treaty—clause 5(4)—if certainevents take place, a referendum is not required if theMinister thinks it is not “significant” enough. Ourwitnesses were just scathing about that. One wondersif this would not be improved if there were not somesort of mechanism for Parliament having a vote, sothat all MPs could say whether they thought it wassignificant or not, rather than just leave it to a Ministersitting in his office, saying, “No, I don’t think I’ll havea referendum on this one.”Mr Lidington: Well, Parliament will have vote andthe Minister will be accountable to the possibility ofjudicial review as well.

Q169 Mr Clappison: Our witnesses wereparticularly scathing about that. They said hey hadnever seen that in a Bill before, catering for thepossibility of a judicial review. It is something that




Parliament should be doing itself, not leaving it tojudges. That is what the witnesses said.Mr Lidington: Let me take Mr Clappison through theargument. As he knows, under clause 6(4), there is alist of a dozen, I think, criteria, that if met wouldrequire a referendum. I’m sorry, I am being corrected,I meant to refer to clause 4(1)(i) and (j). If a treatychange or an article 48(6) decision fell within any ofthe categories other than (i) and (j) or in addition to(i) and (j), then the referendum lock would apply. Thesignificance test only comes into consideration if wehave a proposal which only attracts the referendumlock because it falls within either (i) or (j).

Q170 Chair: If I may, Minister, perhaps you mightlike to ask your legal adviser to come in at this pointbecause the words “in his opinion” are wellestablished in terms of judicial review, and thequestion of whether or not it would be successfullychallenged if anybody did do so, is rebutted by theuse of the words “in his opinion”. Is that not right?Ivan Smyth: When providing his statement, he isgoing to have to give a fully reasoned statement.Obviously, one of the criteria for judicial review isthat the reasonableness test will apply to what theMinister has put forward.

Q171 Chair: Yes, but if you took out the words “inhis opinion”, would that make you feel a lot lesscomfortable?Ivan Smyth: No, because it is his opinion that has tobe reasonable.

Q172 Chair: So you would be happy to see thewords “in his opinion” removed from the Bill?Ivan Smyth: No. I don’t think that there needs to bean amendment to the Bill.Chair: I’m sure you’d say that.

Q173 Chris Heaton-Harris: I have a couple ofissues about “significance” and I am sure that you willbe able to help me.First, the Bill very kindly describes what we aretalking about, namely, article 48(6) decisions, whichare simplified revision procedures, are they not? Doesthat mean that the Lisbon Treaty would not havefallen under this Bill, because that was not“significant”?Mr Lidington: The Lisbon Treaty, the AmsterdamTreaty, the Nice Treaty, the Maastricht Treaty wouldall have required a referendum under this Bill.

Q174 Chris Heaton-Harris: Okay. So amendingtreaties all require a referendum?Mr Lidington: Amending treaties under the ordinaryrevision procedure, which transfers competence—

Q175 Chris Heaton-Harris: So that’s on top of theprovisions of article 48(6)?Mr Lidington: Yes. The significance test only appliesto proposals under the simplified revision procedureand only applies to that type of proposal that fallsunder (4)(i) or (4)(j) and not under any of the othertests listed under clause 4 of the Bill.

Q176 Chair: Can I just ask a question in relation tothe financial stability mechanism treaty? We were toldby officials in Hungary when we visited there lastweek that, in fact, it is already agreed, other than themechanics, so this would be a treaty extending ourrole to a permanent arrangement, or at all, whichwould be significant or not.Mr Lidington: I’m afraid that I can’t be helpful tothe Committee on that point, Mr Chairman, becausewhatever Hungarian officials may believe, that treatyhas certainly not been approved by Ministers andindeed no text has yet been circulated amongMinisters here.Chair: Interesting—but we heard it quiteunequivocally at the time.

Q177 Mr Clappison: Minister, may I just come backto you on my earlier point? Your answer to me wasthat this might not arise very often and that it is onlyin these very limited circumstances where it wouldarise. However, it remains the case that you havecatered for them in the Bill and you have thismechanism where a Minister makes a statement as towhether, “in his opinion”, the change is “significant”and then has to make such a statement to the House.What is the problem with giving Parliament a voteon this, to say whether Parliament thinks that it is“significant” or not? The Bill could be amended todo that.Mr Lidington: I think it’s important that we havesome means of addressing the point that Mr Smithraised in an earlier question, about distinguishingbetween a change that imposed significant newobligations on the UK and something that, although itimposed new obligations on the UK, imposedobligations that were very minor. The example thatwe cite would be if there were some new carbontrading system.

Q178 Mr Clappison: I take all that on board.However, that is all in “the opinion” of the Minister.Are you in the business of thinking about amendmentsto this that could improve the Bill? Are you thinkingabout them?Mr Lidington: It is open to any Member to tableamendments and the Government will look atwhatever amendments are tabled. However, I thinkthat Parliament will have the right to second-guess theMinister. Let us say that the Minister produces hisreasoned opinion that this is an insignificant additionto the obligations on the UK and that either there isno challenge by judicial review or that there is achallenge which is unsuccessful. That amendment,under the simplified revision procedure, still has tocome before Parliament for a full Act in order to ratifyit. So Parliament then can use that opportunity tosecond-guess the Minister’s opinion.

Q179 Mr Clappison: That is true of any Act. I ammore worried about what Parliament decides ratherthan what the courts decide. I am suggesting to youthat, rather than the Minister saying, “This is notsignificant enough for a referendum”, theparliamentary approval mechanism should be used,which is in the Bill, and applied to this, so that it is




Parliament that says something is not significantenough for a referendum. We can all makeamendments to Bills; we can try to amend anythingwe want. The problem that will come—I can see it inmy mind’s eye—is that a Minister will turn round andsay, “Well, this isn’t significant enough and Parliamenthas catered for just this possibility, because it said inthe Bill that we do not need to have a referendum ifit’s not significant enough and I don’t think it’ssignificant enough, so there you are”. And there isnothing that MPs can do.Mr Lidington: Yes, they can, because that treatychange can only be ratified by means of an Act ofParliament.If Parliament, by the resolution that Mr Clappison isadvocating, were going to overturn the Minister’sverdict or to substitute a different opinion of its own,it would have exactly the same right and opportunityto do that under the mechanism that we areestablishing.

Q180 Mr Clappison: That’s an argument againsthaving any of the referendum locks at all, because youcould do that in any of the cases that you have putforward in the Bill. You could do exactly the samething. You could have an Act of Parliament and say,“Well, let’s leave it to Parliament to move a motion,or to put an amendment down for a referendum.” Whyleave it to the Minister’s own opinion? What is wrongwith letting Parliament have a say on it? I come backto that point. Surely Parliament’s view of significancecarries far more weight than just the Minister’s.Mr Lidington: What we have sought to do here is togo further even than giving Parliament the final say,which would be necessary anyway because of therequirement for an Act to ratify any treaty change. Weare saying that in addition to Parliament having thatright—bearing in mind the fact that you can haveParliaments with extremely large majorities for theGovernment of the day, and a number of us servedin such Parliaments in which it was possible for adetermined Government using a large parliamentarymajority to take something through if it so chose—the judicial review possibility provides an additionalsafeguard, over and on top of what Parliament isaiming to do.Mr Clappison: You can’t get into an argument ofsaying that the electorate were wrong there. I am infavour of the principle of parliamentary democracy,not of saying, “Well, I don’t agree with the Parliamentthat has been sent by the electorate.” If the electoratechoose that Parliament, it is a matter for them. I amsaying that it is Parliament rather than the courts thatshould have the decision on this.Chair: I think we have covered quite a lot of thatground, and very effectively.

Q181 Chris Heaton-Harris: Are there not a coupleof loopholes in here, though? I am thinking especiallyof clause 7(2)(d), relating to own resources. We aresaying that own resources, as currently defined, justneed approval by an Act. You know and I know thatthe State of the Union address that President Barrosogave a few months ago talked about a redefinition ofown resources to include an EU income tax, for want

of a better word. That is a fairly fundamental shift thatsurely must trigger a referendum.Mr Lidington: I’ll ask my colleagues to comment onthe detail of this. What we are doing over ownresources is following existing requirements—namelythat we need an Act of Parliament to approve an ownresources settlement. What can be included in a multi-annual financial framework depends of course on theextent of competence given by the treaties. At themoment, I think I’m right in saying that the EuropeanUnion has no power to levy an income tax of the sortthat Mr Heaton-Harris describes.

Q182 Chris Heaton-Harris: But it has power to levyown resources, which are based on a whole—Ivan Smyth: It is subject to unanimity. The ownresources decision is subject to unanimity of votes.

Q183 Chris Heaton-Harris: That’s a matter for aveto—I am very glad that you have pointed that out.We don’t get many vetoes nowadays; there are veryfew ever around. Surely a veto involves a transfer ofpower that is significant, and therefore that shouldtrigger the significant—Mr Lidington: Loss of veto over the own resourcesmulti-annual financial framework would trigger areferendum.

Q184 Chris Heaton-Harris: Absolutely?Mr Lidington: Yes, absolutely.

Q185 Chris Heaton-Harris: So it doesn’t need tohave the significance test?Mr Lidington: No, the significance test does not applyto that.

Q186 Chair: Under clause 4(1)(e), Minister, there isan obligation on the United Kingdom to have areferendum before there is an extension of the EU’scompetence in a field shared with member states. Thereality, though, is that the Commission can alreadypropose legislation in a field of shared competencewhere it thinks that the member states have not actedwithout any revision to the treaty. When it does so,the Court of Justice upholds its actions and says thatmember states cannot propose their own legislation inthis field. That is the doctrine of the occupied field.Do you agree that the Bill does not address thisextension of EU competence, and how do you thinkthat can be addressed?Mr Lidington: As I’ve said on a number of occasions,we are accepting the current situation as regardstreaties and the acquis. What clause 4(1)(d) does is torequire a referendum before the treaty is changed toprovide for a new area of shared competence. Wherethere is an existing area of shared competence—

Q187 Chair: We are referring to clause 4(1)(e).Mr Lidington: Yes, clause 4(1)(e)—“shared with themember States”. If that competence is extended byway of treaty change, a referendum would berequired.

Q188 Chair: The problem—if I can help, Minister—is that this is actually more about practice. The




question, which I am sure your legal adviser will beable to deal with or at least address, is about theproblem where it is a matter of practice by theCommission that it takes this particular line and theBill does not actually deal with that.Ivan Smyth: It doesn’t deal with the situation wherewe are acting within existing areas of sharedcompetence. What clause 4(1)(e) is designed to dealwith, as the Minister has correctly stated, is if we wereto expand the number of areas listed under the treatythat are subject to shared competence.Mr Clappison: It is quite difficult, because there aresuch a lot of them already. There’s not that much leftthat isn’t.

Q189 Chair: In fact, the doctrine of the occupiedfield has reached the point where there is almostnothing left in the field anyway, but that’s anotherstory.The final question relates to where, for example, aMinister may inadvertently agree, in breach of aprovision in the Bill, to an EU proposal that extendsits competence or power, and that proposal is directlyeffective or applicable and would automaticallybecome an enforceable right under section 2(1) of theEuropean Communities Act. Case law suggests thatthe ECA is not an Act that can be impliedly amended.So, in your view, should provision be made in theBill to clarify that an EU proposal that does extendcompetence or power in breach of part 1 of the Billcan never become an enforceable right for thepurposes of section 2(1) of the EuropeanCommunities Act?Mr Lidington: There are already checks and balancesin the system to stop that happening. First, the EUinstitutions are legally bound to act within theconfines of the treaties. Secondly, we have the detailedscrutiny against competence creep, both through thisCommittee and the Committee in the Lords, andthrough what the Government are doing through theirEuropean Affairs Committee. Thirdly, we will, underthe existing arrangements, as a Government, lobbyand build alliances against competence creep, but ifwe were outvoted—fourthly—we would take the caseto the ECJ.The problem with the sort of amendment that you areproposing, Chair, is that it would introduce enormousuncertainty into the system. That would affecteverybody who has to comply with EU law—businessand individuals. If it led to infraction proceedings fornon-implementation of EU law, it would be costly andit could lead to claims for Francovich damages againstthe United Kingdom, so we are not attracted by thatcourse of action.

Q190 Kelvin Hopkins: Presumably, we could have asituation with a rogue Minister—even a rogue PrimeMinister—who could just give away something on thehoof, as indeed Tony Blair did at the end of our lastpresidency with the budget. Apparently to theastonishment of fellow European leaders, he gaveaway billions on our rebate without so much as atelephone call, it seems.Mr Lidington: With respect, Mr Hopkins, that is adifferent argument, because the former Prime Minister

agreed to a particular bargain in the course of anegotiation. He then came back and got approvalthrough the mechanisms that existed at that time forwhat he had negotiated on behalf of the country. Thatall took place within the framework of the treaties, asthey existed at that time. What the Bill is about ischanges to the treaties and Article 48(6) decisions. Itis not about particular legislative measures underexisting treaty powers.

Q191 Kelvin Hopkins: I think there is a fine line, atpoints, between what is constitutional and what ispolicy. I use that as an example. A constitutional pointmight be given away by a rogue Prime Minister whowas a secret federalist trying to defy Parliament.Perhaps he would even sacrifice his ownparliamentary career and say, “I did the right thingby Europe.”Mr Lidington: The reason why we’ve gone into suchdetail in trying to anchor this Bill to particular articlesof the treaties is precisely to guard as best we canagainst the sort of risk that Mr Hopkins describes.

Q192 Jacob Rees-Mogg: In terms of the whole Billand this theory of Lord Justice Laws in Thoburn aboutconstitutional Acts, if the Bill becomes an Act, wouldit be a constitutional Act in your opinion?Mr Lidington: I’m afraid I am going to be completelystraight and duck that question. It is an importantquestion, but one on which any Minister would seeklegal advice from the Law Officers as well as fromhis own Department. The whole Laws description ofa category of Acts that have a particular constitutionalstatus is one that, quite properly, is a matter for theLord Chancellor rather than me.

Q193 Chair: Minister, in conclusion, do you believethat this Bill as a whole—given that it includes clause18, on which we are issuing our report this evening,and in relation to the whole referendum question—really is a de minimis operation? We are witnessingincreasing integration of European governance on theIrish bail-out and the question of investigation orders.There is a whole stream—a tsunami, if you like—of provisions that are going ahead, yet we’re givensomething in this Bill that doesn’t deal with the 1972Act in its application to past arrangements, where wemight need repatriation in the national interest, butactually is merely looking to the future. Would I beright in saying that what you’re really doing is justdrawing a line under past legislation, saying, “We’renot going there,” and simply allowing the flounderingEuropean Union, with its economic problems with theeuro and so on, just to continue without actually anyserious attempt to re-address the question of therelationship between ourselves and the EuropeanUnion in terms of the Lisbon Treaty and previouslegislation?Mr Lidington: I think it’s a lot more than a deminimis measure. I think that the introduction ofadditional powers for Parliament to insist on givingits assent before certain decisions are taken, and thenew powers for the people to have the final say overany future proposal to transfer competence, are verysignificant changes to our law. What is true is that the




Bill does not set out to revisit previous treaties or theexisting legal order as regards the directly effectivenature and primacy of European Union law in thiscountry.What the Bill is doing is delivering two of theGovernment’s commitments under the coalitionprogramme. It brings in legislation to require areferendum before transfers of competence and torequire primary legislation before passerelle clausesare used. Secondly, it delivers on what was in thecoalition programme simply as an agreement toconsider the case for a sovereignty Bill—that Bill isbeing introduced by the means of clause 18. Therewas a third limb to the coalition programme’scommitments on Europe, which was to examine thebalance of competencies between this country and the

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European Union and, in particular, to examine waysin which the operation of the Working Time Directivecould be made less onerous. That work is going on.

Q194 Chair: I have one last question. Could youpossibly tell us—in fact we would be very glad toknow—how many days the Bill will receive inCommittee on the Floor of the House?Mr Lidington: My understanding is that there will befive days allocated in Committee. I understand thatthat is the proposal that has been agreed through theusual channels and that will be on the Order Papertomorrow.Chair: Minister, thank you very much indeed.

The EU Bill and Parliamentary sovereignty · The EU Bill and Parliamentary sovereignty Tenth Report...

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