Is Laws LJ right to suggest that EU law is like secondary legislation?

In his third Hamlyn Lecture, Laws LJ elaborates upon the analysis he offered in Thoburn v Sunderland City Council of the constitutional status of EU law in the UK. Like the view advanced in Thoburn, the position adopted by Laws LJ in his lecture is subtle and fascinating. He endorses the view—affirmed by section 18 the European Union Act 2011—that EU law is effective in UK law only because primary legislation—section 2 of the European Communities Act 1972—so provides. The novelty of Laws LJ’s Thoburn judgment lies in his characterisation of the ECA 1972 as a “constitutional statute”, meaning that it can be repealed only by specific provision in subsequent legislation. Crucially, however, on Laws LJ’s analysis the ECA’s status as a constitutional statute does nothing to change the fact that EU law applies only for as long as, and on the terms that, Parliament is willing to tolerate. This leads Laws LJ to the conclusion that the constitutional status of EU law is analogous to that of secondary legislation:

The point for present purposes is that the levers of constitutional power are in law untouched by our membership of the European Union. “[T]he courts have found their way through the impasse seemingly created by two supremacies, the supremacy of European law and the supremacy of Parliament” [per Laws LJ in Thoburn]; and the supremacy which European law possesses in this jurisdiction is entirely given by the United Kingdom Parliament. To that extent European measures, so far as they are effective in this jurisdiction, possess a principal characteristic of secondary legislation: they only have force to the extent permitted by the enabling Act. Now, it is well established by the common law that secondary legislation cannot lawfully abrogate a fundamental or constitutional right unless the enabling statute gives authority for that to be done by express words or the clearest implication. But s.2 of the European Communities Act is expressed in very general terms.

In Thoburn I said: “In the event, which no doubt would never happen in the real world, that a European measure was seen to be repugnant to a fundamental or constitutional right guaranteed by the law of England, a question would arise whether the general words of the ECA were sufficient to incorporate the measure and give it overriding effect in domestic law.”

And so, because the supremacy which European law possesses in this jurisdiction is given by the United Kingdom Parliament, the reach of European law is ultimately a function of Parliament’s will; and it is of course not to be assumed that Parliament has given the European legislature carte blanche.

The difficulty with Laws LJ’s view that EU law’s status in the legal system is analogous to that occupied by secondary legislation stems from its parochialism. It is technically correct to say that, as a matter of domestic law, EU law applies only on the terms laid down by Parliament. Parliament is free, as a matter of domestic law, to repeal or amend the ECA, closing the door of the UK’s legal system, wholly or partly, to the directly-effective EU law that would otherwise apply here. There is, however, a crucial difference between Parliament’s capacity to curtail executive powers to enact secondary legislation and its ability to resist the application of EU law. Although—being sovereign—Parliament has unfettered domestic capacity to do each of those things, its ability to do the former in a manner that is lawful falls to be judged not only by reference to domestic, but also by reference to international, law. For the UK to resist the application of directly-effective EU law by amending the ECA might be perfectly possible, and wholly lawful, at a domestic level, but the position is otherwise on the international plane. The elegance of Laws LJ’s analysis lies in its capacity to accord a pragmatic, day-to-day primacy to EU law, whilst insisting that, in theoretical terms, Parliament’s sovereignty is undiminished thanks to its capacity to amend the ECA and override EU law. But the elegance of that accommodation betrays its greatest weakness: that it presents an analysis of the British constitution shorn of the international legal context in which it now falls to be understood.