Entrenched EU law? Yah boo

13 December 2010 by Rosalind English

The  “sovereignty clause” included in the European Bill  to shield UK legislative supremacy is not only ineffective   but could positively threaten the very principle by inviting speculation and litigation, say experts. This is the  thrust of the EU Scrutiny Committee’s report on the European Bill, published on 6 December.

The report is an exemplar of clarity and even-handedness in this controversial field, and here is the bottom line. The debate over whether EU has primacy over national law, or vice versa, is a matter of political ideology only, and not a very complex one at that. It is not a philosophical, scholastic, juridical or even legal question, despite the amount of ink spilt over it during the four decades or so since accession under the European Communities Act 1972.  As the Committee received evidence on the question from a wide range of experts in the field, one thing became clear; that instead of thinking out the question afresh, the temptation for everyone involved in this subject is to adumbrate a series of conclusions towards entrenched positions on either side of the divide.  And here they are:

• EU law is a self-authenticating form of higher law. No it’s not. EU law is only enforceable under national law because the ECA makes express provision for it to be so.
• The higher principle of the supremacy of EU law was established independently of the ECA, in cases such as Costa v ENEL. It is therefore self-entrenching. Not it’s not, because any future statutory provision, derogating from EU law and excluding the application of the ECA,  will be enforced by the courts, which are bound to bow to the principle of Parliamentary sovereignty.
• Even though EU law is not self-entrenching, the ECA is a “constitutional” statute (like the Magna Carta or the Human Rights Act)  which cannot be impliedly repealed by subsequent statutes. No it’s not: the national constitutional rule of law requires judges to disapply any aspect of EU law if it is the will of a democratically-elected Parliament.

So we have an impasse. And it is not an impasse which can be resolved by the so-called “national sovereignty clause” any more than it has been settled by the clash of titans in the series of cases dealing with this point, directly or indirectly – Factortame ((No 1) [1990] 2 AC 85; Factortame (No 2) [1991] 1 AC 603), Thoburn v Sunderland City Council[2002] EWHC 195 (Admin) , Jackson v Attorney General [2006] 1 AC 262.  Indeed, it may be something of a hostage to fortune. Given the perennial fascination with the subject of EU supremacy/Parliamentary sovereignty, not just amongst legal scholars  and constitutional lawyers, but judges, practitioners and a whole swathe of experts on EC matters, we would do well  to avoid including such a clause which, in the words of Adam Tomkins, one of the experts to the Committee, “goes out of its way to invite litigation”.

This is not because the clause itself is badly drafted, although the Committee did have sharp words to say about the Explanatory notes, observing that “minimal research” reveals the depth of division of opinion on the question of Parliamentary sovereignty versus EU law.The Committee’s concern is rather that the clause will lend itself as a catalyst to an elemental transformation of the principle of Parliamentary sovereignty. The stimulus to this change is not a figment of the Eurosceptics’ collective imagination. It is easily discerned in those whose view it is that the sovereignty of Parliament is a construct of the common law. As such it is open to revision by the courts. And therefore, says another expert witness Paul Craig,

it is not beyond peradventure that the courts would disapply a statutory provision which was violative of fundamental rights … there is no a priori inexorable reason why Parliament merely because of its very existence must be regarded as legally omnipotent.

The unthinkable possibility of re-thinking Parliamentary sovereignty has already been thought, for example in Jackson where Lord Hope set out a scenario designed to strike fear in to the heart of anyone prone to fretting about EU mission creep:

Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified…The direction in section 2(1) [of the ECA] that Community law is to be recognised and available in law and is to be given legal effect without further enactment, which is the method by which the Community Treaties have been implemented, concedes the last word in this matter to the courts.”

To Adam Tomkins, Jackson is “authority for not much, but it is authority for the proposition that we have the right to be concerned about what is going to happen to parliamentary sovereignty in the hands of the courts”.

And of course Laws LJ’s pronouncement in Thoburn that the ECA belongs to a special family of  “constitutional laws” may also be seen as one step towards larger modification of the principle of parliamentary supremacy whereby judges refuse to apply inconsistent legislation without explicit repeal or amendment of the ECA. The Committee found this a disquieting notion, to say the least.

We think this view leads to a state of uncertainty and gives primacy to the rule of EU law over the national constitutional rule of law. And there is considerable risk in the legislative supremacy of Parliament being seen as a construct of the common law if this means the principle will vary according to the judicial climate of the time.

Michael Dougan dismissed the concerns at the heart of the Parliamentary Sovereignty clause, saying that any argument that “a slow-burning judge-led plan to recognise the EU as a self-authenticating entity whose authority is substituted for that of the UK is essentially political in nature”

Well, political such an argument may be, but it doesn’t make it negligible; it is no less worrying than if it were a scholarly argument – in fact, being political, the likelihood that such a doctrine may find a manifestation in reality makes it more of a concern. However the majority of the witnesses were of the view that what clause 18 does not do, and could not do, is to alter the nature of EU law, its primacy within the EU system and its relationship with UK law. The clause is “extremely dangerous”, according to Adam
Tomkins:

The rule that I would respectfully urge you to bear in mind in dealing with this or any other question of constitutional reform is the most powerful law of constitutional reform, which is the law of unintended consequences. The more I think about this, the smaller clause 18 seems. It seems to be dealing, as I said a few moments ago, with one aspect of a big problem that is not itself particularly problematic, because it was fairly clearly dealt with by the Thoburn judgment. …[The clause] doesn’t deal with any of the problems that do really need to be dealt with, in my respectful judgment, relating to questions of sovereignty in the context of the relationship between the UK and the EU

The conclusions of the Committee’s report were, very briefly, that:

• Should an Act of Parliament instruct the courts to disapply an aspect of EU law, the courts should do so; this is consistent with the legislative supremacy of Parliament and the rule of law.
• There are degrees of non-compliance with EU law (such as France’s recent deportation of Roma immigrants) and that derogation from a Directive does not have to lead to repealing the ECA and withdrawing from the EU.

In short, by not addressing the competing primacies of EU and national law, Clause 18 is at risk of opening a Pandora’s box of litigation leading ultimately to the very erosion of Parliamentary supremacy it was drafted to protect.

Read more:

• New EU Bill seeks to enshrine British sovereignty
• “Sovereignty clause”? Not so fast..