The EU Bill in the European Scrutiny Committee

by Carl Gardner on November 25, 2010

Bill Cash’s European Scrutiny Committee of the Commons is looking at the EU Bill, and in particular is considering very closely clause 18, William Hague’s “national sovereignty clause”, which I’ve written about before. If you’re as interested as I am in this clause and the relationship between EU law and our own constitution, you’ll want to read or perhaps watch the evidence given on Monday by Professors Paul Craig of Oxford University and Trevor Hartley of LSE, and today by Professors Anthony Bradley of Oxford, Trevor Allan of Cambridge and Adam Tomkins of Glasgow.

You can see the videos here and here. The Professors’ written evidence is here, and a transcript of the evidence of Professors Craig and Hartley is here.

Interestingly all these academic lawyers have told the committee they think clause 18 is of no practical effect – I’m glad they agree with me. Professors Craig and Bradley seemed a bit more sympathetic than the others (and than I am) to the idea of its having “symbolic” importance. I can’t see what the point of that is.

Today I thought Professor Bradley quite often seemed to stray into what he thought the law should be rather than explaining what he think it is, which I’m not sure was the most helpful approach to take. Professor Allan though (at 10:52:30) explained very well why clause 18 is no defence to the argument that EU law is entrenched in the UK, which was defeated in the “metric martyrs” case, and which Eurosceptics fear.

Most impressive to my mind was Professor Tomkins. I’m not sure I’m persuaded he’s right that Parliamentary sovereignty is not a common law principle (if not, then how is it law at all?) but he seemed to me admirably clear on what Parliamentary sovereignty is and what it’s not and importantly, he drew attention to the fact that this sort of legislation can be dangerous. He was also interesting on implied repeal (at about 12:15:50) and severely critical of the explanatory notes to the bill (12:26:40).

At one point (12:07:20) his session reminded me of the sort of meeting I used to attend between ministers and lawyers, in which after a couple of hours the minister exasperatedly asks: So what do we need to do to achieve what I want? And the lawyer replies: What do you want? I think the real problem is that Eurosceptics have no clear idea of what they want a sovereignty clause to do. I think the government’s policy is to provide an empty sop to Eurosceptics, which is exactly what clause 18 does. The question is, will Eurosceptics on this committee realise that’s what’s happening?

Watching today’s evidence I was struck yet again by how strangely obsessed MPs are by the “notwithstanding” issue Bill Cash goes on and on about – in other words, whether the courts would given effect to UK legislation inconsistent with EU law, if it said expressly it applied “nothwithstanding” the European Communities Act 1972, while leaving the 1972 Act alone. Why Bill Cash or anyone else thinks MPs would ever want to present the courts with this conundrum, I have no idea. The only reason for doing it would be the pure fun of it. If you seriously wanted national law to derogate from EU law you’d expressly amend the ECA 1972, and the courts would have no problem.

{ 3 comments… read them below or add one }

1 James Medhurst November 25, 2010 at 20:41

Carl, do you think that indirect effect could cause some problems if the European Communities Act is ever repealed? If the meaning of a statute is stretched to make it compatible with a Directive, what will happen to the authority of the case interpreting the statute if we withdraw from the EU? Will it continue to bind the courts below?

There is an interesting employment law case called Parkwood v Alemo-Herron, in which a similar point arises, although the courts have so far declined to deal with the wider issue. It is possible that the Supreme Court will take the plunge. Briefly, a English decision interpreted the Directive too widely and used this interpretation to interpret the TUPE Regulations. The ECJ then preferred a narrow reading of the Directive but the Employment Appeal Tribunal still insisted that the wide interpretation of the statute remained correct and was binding. The Court of Appeal disagreed and declared that domestic decisions on the matter should not be followed. However, it had the power to overturn those domestic decisions anyway as they were not made at Court of Appeal level. It remained silent as to whether it would be possible to disregard Supreme Court rulings.

2 simply wondered November 26, 2010 at 22:54

they only agree with you because you (and they) are right. not hard, that!

and i thought parliamentary sovereignty was uncomfortably between common law and convention (and if it has become the former it is purely because of the latter – if that is possible). but that’s just from con and ad 101…

james – would the impact of the change not be akin to a change in statute law which would render previous judicial decisions made under it no longer applicable?

3 James Medhurst November 27, 2010 at 01:25

Well, secondary legislation made under the European Communities Act itself would just fall away and then it would be as if it had been repealed. However, primary legislation, such as the Equality Act and, indeed, the TUPE Regulations, would remain in force. It would be wrong to disregard the decision of a higher court simply because it has taken a Directive into account, where this played a small part in its reasoning, but this begs the question of where the line is to be drawn. It could even be argued that, because parts of the Equality Act were expressly drafted in order to comply with European law obligations, this should continue to be taken into account in trying to discern the intention of Parliament, even if we did leave the EU.

I mention this because, for someone who is so inclined (I am not), this could be a problem which could be influenced by legislation. It would probably not be a good idea but it would not simply be a sop to political interests, as it is in the case of direct effect. Whatever happens, I would forsee tremendous problems of interpretation for the courts in attempting to disentangle UK law from European law.

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