Tuesday, 21 June 2011

The EU Bill and Parliamentary Sovereignty, House of Commons European Scrutiny Committee

This is a report produced by a committee of the House of Commons on William Hague's European Union Bill.  It is directed in particular at the Bill's "sovereignty clause", which seeks to affirm the supremacy of British law over the law of the European Union:
18  Status of EU law dependent on continuing statutory basis
It is only by virtue of an Act of Parliament that directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom.
Britain has no written constitution - or, to be more pedantic, no codified constitution (most of the constitution does in fact exist in written form, divided between various pieces of legislation and judicial decisions).  The classical theory of the British constitution holds that the ultimate source of law and authority is not a foundational document like the Constitution of the United States but rather the living sovereignty of Parliament, consisting of the Queen, the House of Lords and the House of Commons.  On this view, the most recent statute passed by Parliament on any given subject represents the supreme and binding law of the land.  This doctrine, as every law student knows, is most closely associated with the Oxford jurist A.V.Dicey (1835-1922), but Prof. Jeffrey Goldsworthy has more recently shown in his magisterial study The Sovereignty of Parliament that it goes back to Tudor times and beyond.

The doctrine of parliamentary sovereignty is less akin to law than it is to theology (though this comparison may be unduly insulting to theologians).  It holds that Parliament is not subject to any legal or moral constraints whatsoever.  The only thing that Parliament cannot do is diminish its own sovereignty by binding its successors, in much the same way as God, according to mediaeval scholastic philosophy, cannot create a rock that is too heavy for Him to lift.  At times, the traditional doctrine really does seem to require something in the nature of an assensus fidei.  It is sometimes said that there is nothing in principle to stop Parliament from repealing the various decolonising statutes and notionally reassuming control of India, Canada or Zimbabwe.  Sir Ivor Jennings thought that Parliament could make it illegal under British law for a Frenchman to smoke on the streets of Paris.

If a legal doctrine throws up such ridiculous results, doesn't that say something about its soundness?  One is perhaps reminded of the pious but unserious claim in the pre-1999 version of Articles 2 and 3 of the Constitution of Ireland that the Irish state had the legal right to exercise jurisdiction over Northern Ireland.  All constitutional doctrines are legal fictions to some extent - they necessarily operate in a practical, political context, and there is no constitutional order that cannot be subverted by a bloody or bloodless revolution.  Some doctrines, however, are definitely more fictitious than others.

The traditional theory of parliamentary sovereignty is not without its critics.  There are a number of historical authorities that appear to contradict the Diceyan doctrine, including the judgments of Sir Edward Coke in Doctor Bonham's Case (1610) (which is said to have influenced the US Supreme Court's approach to the judicial review of legislation), Lord Chief Justice Holt in City of London v Wood (1701) and Mr Justice Best in Forbes v Cochrane (1824).  In more recent times, the ability of Parliament to do anything it pleases has been questioned by a string of the country's most senior judges, including three Law Lords in Jackson v Attorney General (the Countryside Alliance's challenge to the hunting ban), Lord Cooke and Lord Woolf.  Even Dicey himself departed from the doctrine when it suited him: the threat of Irish home rule was enough to convert him to the merits of the fundamentally un-parliamentary practice of referendums.

What is more, the fact is that Parliaments have effectively bound their successors.  The Parliament Acts and the Regency Acts are clear examples of statutes that have permanently altered the operations of future Parliaments (the original 1911 Parliament Act did not go down well with Dicey).  There is also the point that parliamentary sovereignty appears to be subject to certain inherent restrictions laid down in the 1707 Acts of Union, which created the British Parliament out of the former legislatures of England and Scotland.  The Acts of Union stated expressly that the new Parliament could not do certain things, and it appears that these restrictions are taken seriously by the Scottish courts (as in MacCormick v Lord Advocate (1953) and Gibson v Lord Advocate (1975)) and by academic writers (though not all of them - our friend Dicey thought that the Acts of Union could be repealed as easily as the Dentists Act, another example of the classical doctrine producing embarrassingly counter-intuitive results).

And so to Europe.  The European Court of Justice (ECJ) has long maintained that EU law is a separate and superior legal order which prevails over the domestic law of member states.  This doctrine was laid down years before the UK even joined the EEC (as it was then), in the cases of Van Gend en Loos (1963) and Costa v ENEL (1964).  One can see why Eurosceptics would find this notion rather irritating.  The Conservative leadership is concerned that the British courts may hold that the European Union rather than Parliament is the ultimate sovereign authority in the United Kingdom (or pretends to be so concerned in order to pander to Daily Mail readers), and the "sovereignty clause" is intended to address this difficulty.  William Hague told the Conservative Party conference earlier this year that the clause "will place on the statute book this eternal truth: what a sovereign parliament can do, a sovereign parliament can undo".  Note the metaphysical phraseology - parliamentary supremacy is not a debatable legal theory but an "eternal truth".

The problem is that the doctrine of the supremacy of EU law tends not to be taken very seriously outside of the ECJ itself.  It is not accepted by the constitutional courts of Germany, Poland and the Czech Republic, and the judges of our own dear High Court failed to adopt it when it was argued to them by Eleanor Sharpston QC in the 'Metric Martyrs' case in 2001 (Thoburn v Sunderland City Council).  There is no serious suggestion that the courts' attitude is likely to change any time soon.

The standard view remains that EU law has effect in the UK because, and only because, an Act of Parliament says so (the statute in question being the European Communities Act 1972, or the ECA for short).  If Parliament were to pass an Act expressly stating that some provision of EU law was not to have effect in the UK, the courts would likely enforce it.  This situation has never come about to date - the existing cases on conflicts between EU law and domestic statutes, like Factortame, have not had to deal with express wording in the conflicting statute.  Nonetheless, the expert witnesses whose testimony is cited in this report think that Parliament need not worry that its will would be ignored in favour of the faceless Eurocrats of the ECJ.  Even in the unlikely event that the courts took the view that the ECA continued to prevail over the conflicting Act in spite of the latter's express wording, the courts would still fundamentally be choosing which of two UK statutes to follow within the UK legal order.  No-one is suggesting that British judges are eager to embrace the ECJ's inflated view of the importance of EU law - and in the broader context Parliament remains free to repeal the ECA itself.

Don't get me wrong - I am not a believer in parliamentary sovereignty.  I would much prefer it if the supreme legal authority in the UK was a written constitution which gave formal recognition to the role of EU law.  As threats to parliamentary supremacy go, however, EU law is a bit of a damp squib.  If the judges took it into their heads to repudiate the sovereignty of Parliament, it would far more probably be because Parliament was trying to infringe some fundamental human right or competing constitutional principle, such as the rule of law.  The closest the judiciary have come to a rejection of the Diceyan doctrine in recent times - the Court of Appeal stage decision in Jackson - had nothing to do with the European Union.  If the judges decide, in effect, to take away some of Parliament's legislative power, they are much more likely to keep it for themselves than to give it to the ECJ.

It is perhaps unsurprising, then, that the report comes out against the "sovereignty clause", despite the fact that the committee's chairman is the diehard Eurosceptic Bill Cash - just the sort of person, one might think, who could be expected to back the provision.  The expert witnesses were similarly unimpressed with the clause.  They thought that it would fail to close off the possibility of future litigants arguing that EU law is a superior legal order, and they suggested that it might even serve to undermine parliamentary sovereignty (why, for example, is Parliament asserting its supremacy only in relation to EU law?  Is it implicitly conceding that its sovereignty in other areas is not absolute?).  It was also observed that there is a definite irony in the fact that other parts of the Bill stipulate that future legislation enlarging the powers of the EU must provide for the approval of the relevant changes in a referendum - a fairly clear instance of the present Parliament attempting to tie the hands of its successors.  What was that about eternal truths again?

I suspect that the "sovereignty clause" will be passed, but not because it has any legal merit.  As with the Conservative Party's pitiable decision to withdraw from the European People's Party, good sense is being sacrificed in return for the political payoff of appeasing the more ignorantly Eurosceptic elements of the Tory base.