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Published: Fri, 02 Feb 2018
A problem Question: How EU regulations effect British Parliamentary Sovereignty
Surrey North West is represented by patriotic Conservative Bob Rogers MP. At a constituency surgery, Bob notices Montgomery Smithe OBE, owner of a company that deals in the sale of aeroplane engines, based in the Surrey North West constituency. The local economy is heavily reliant on the financial success the company. Approaching Bob in a less than calm manner, Montgomery explains to Bob his frustration with newly announced [fictitious] EU Regulation imposing a ban on the export of large aeroplane engines, when they are intended to be fitted on aeroplanes with a passenger capacity of less than 250. This is part of a policy aimed at reducing the carbon emissions of air travel. Montgomery’s company has invested £45 000 000 in research to produce the new engine design. Montgomery is determined to fight and has come to his MP for support. A few days later at Prime Ministers Questions, Bob confronts the Prime Minister demanding that he ignore the Regulation. In response, he is told that as an EU Member State, the UK is obliged to implement EU Regulations regardless of the views of individual MP’s, although this is not necessarily the case had the instruction been given in a Directive. Bob, angered by this view takes to his feet and declares ‘we are the British Parliament and we are supreme…’. Bob’s speech continues for some time. He is eventually ejected from the chamber.
Is Bob Rogers MP correct in his assertion of British parliamentary supremacy?
It is Bob Rogers proposition that any piece of legislation enacted by the United Kingdom Parliament takes precedence over that enacted by the European Union. However, the doctrine of parliamentary sovereignty is a common law doctrine, and, as such, has evolved over time. Following the enactment of the European Communities Act 1972, it has evolved to include both the jurisprudence of the European Court of Justice and also that of national courts, incorporating EU law into national law. The earliest proponent of parliamentary sovereignty advocated that the judiciary possessed the authority to amend Acts of Parliament, and were necessary, to repeal them through precedent where the court was of the opinion that the statute was morally repugnant or indefensible. 1 Therefore, whilst the courts recognised the supremacy of Parliament to create statute, it did not recognise its absolute authority to modify or amend statute. Thus, it is evident that from the inception of the common law doctrine of parliamentary sovereignty, it has never been recognised as conferring supremacy on Parliament in the manner expressed by Bob Rogers, MP. This essay will demonstrate that the doctrine of parliamentary sovereignty has continued to evolve since the dicta of Lord Chief Justice Coke in Dr Bonham’s Case to the present day through judicial precedent and the limitations placed on parliamentary sovereignty by the United Kingdom’s accession to the European Union.2
The traditional definition of parliamentary sovereignty is that expounded upon by Dicey in which he asserted that Parliament has ‘under the English constitution, the right to make or unmake any law whatever; and further….no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament’.3 Thus, in essence, Dicey maintained that Parliament has the absolute authority to enact; modify and repeal any statute, and such authority cannot be curtailed by another institution such as the judiciary. This opinion is contrary to that expressed by Lord Chief Justice Coke in Dr Bonham’s Case, and yet the jurisprudence which has developed subsequently concurs with the view expressed by Dicey. For example, in Madzimbamuto v Lardiner-Burke Lord Reid maintained that the judiciary does not have the authority to determine the validity of legislation enacted by Parliament.4 Whilst Lord Reid’s opinion was consistent with the dicta of Dicey, it has become obsolete since the United Kingdom’s accession to the European Union as accession has permitted the judiciary to declare national law incompatible with EU law, therefore transferring supremacy from the national to European institutions.
The pre-eminent challenge to parliamentary sovereignty occurred as a consequence of the United Kingdom’s accession to the European Union. This is because where national law is incompatible with EU law, EU law is deemed to have supremacy over national law.5 Where such conflicts occur; Member States must amend national law to comply with the relevant EU law. It should, however, be acknowledged from the outset that due to the jurisprudence of the European Court of Justice6, the United Kingdom knew of the limitations to be placed upon its sovereignty prior to ratification of the European Communities Act 1972.
The issue of EU supremacy over national law was resolved in the seminal Case 6/64, Costa v ENEL7 in which the court held that where national and EU law conflicts, EU law will prevail. This doctrine was subsequently extended in Case 11/70 Internationalle Handelsgesellschaft8 in which the ECJ held that EU law has supremacy over national law.
The European Communities Act 1972 is the domestic legislation which permitted the United Kingdom’s accession to the European Union. Section 2(1) imported all EU provisions into national law, giving them legal effect.9 The EU distinguishes between two forms of legal effect; namely, ‘directly effective’ and ‘directly applicable’ provisions. Article 288 of the Treaty of the Functioning of the European Union10 stipulates that ‘directly applicable’ provisions are Treaty Provisions and Regulations. They do not require the member states to enact any enabling legislation for them to become part of national law as they automatically become so by virtue of their membership of the EU. The term ‘directly effective’ is not contained in any treaty provision, but rather is a creation of the European Court of Justice, having been formulated in Case 26/62 Van Gend en Loos.11 It refers to any provision which is sufficiently clear and unconditional as to be utilised during proceedings before national courts.12 In contrast, ‘directly applicable’ provisions require member states to create legislation in order to transport EU directives into national law. In doing so, the ECJ has held that member states must enact legislation which is in both the spirit and the wording of the directive. However, the national court retains the discretion to interpret the legislation, provided it does so in conformity with ECJ jurisprudence13 The ECJ, in Marleasing, held that national courts must make its judgement based on the purpose of the directive,14 but only where possible.15
The conflict between EU and national sovereignty was initially addressed in the United Kingdom by the Court of Appeal in Maccarthy’s Ltd v Smith.16 This case concerned a conflict between the Equal Pay Act 1970 and Article 177 EC17. In delivering his judgement, Lord Denning was of the opinion that national law must be adjudicated upon in conjunction with EU law and that where national law is incompatible with EU law, EU law must take precedence.18 He furthered his argument by advocating that the supremacy of EU law over national law was provided for in sections 2(1) and (4) of the European Communities Act 1972. Thus, Mccarthy, building upon the jurisprudence of the European Court of Justice prior to the United Kingdom’s accession to the European Union, incorporated the jurisprudence and conventional practices of the European Court into domestic jurisprudence.
However, the most definitive judgements on the conflict which arises between parliamentary and EU supremacy are those expounded upon in the Factortame cases.19 In Factortame a dispute arose as to the conflict between the European Communities Act 1972; the Merchant Fishing Act 1988 and Article 177 EC20 . This case involved a number of owners and directors of ninety-five fishing vessels who originally registered their vessels as British under the Merchant Shipping Act 1894. This permitted their vessels to fish in British waters. The owners and directors were foreign nationals. When the legislation was replaced by the Merchant Shipping Act 1988 they applied to re-register the vessels as required by the Act. All vessels were refused permission to re-register as British fishing vessels for the purposes of the Act, and thus the parties no longer had authority to fish in British waters. The parties raised an action, arguing that the refusal of the authorities to re-register the vessels as British was a breach of EU law as the Merchant Fishing Act 1988 discriminated against the foreign nationals, who had a majority share in the ownership and directorship of the companies which owned the fishing vessels. They also sought interim relief whilst the case was being considered so their business interests were not damaged by the litigation. When considering whether national or European law has supremacy Lord Bridges stated ‘If the supremacy…of Community law over the national law of member states was not always inherent in the EEC Treaty it was certainly well established in the jurisprudence of the European Court of Justice long before the UK joined the Community….Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary’. 21 Under the terms of the 1972 Act where a UK court is faced with a conflict between national and EU law, EU law takes supremacy, and thus, in reaching its final judgement, the national court must apply the relevant EU law. In reaching this judgement, the House of Lords has effectively concluded that section 2(4) of the 1972 Act has provided a mechanism for the judiciary to limit the supremacy of Parliament where statute is deemed incompatible with EU law. However, this law is not absolute in the sense that Parliament does not have the absolute authority to bind its successors, but rather, successive administrations may choose to repeal or amend the legislation. The reason for this is obvious, for where a Parliament has the capacity to bind its successors; it has the capacity to create a dictatorship. Whilst this rule demonstrates the limitation placed on parliamentary sovereignty, in that Parliament does not have the authority to establish a piece of legislation which successive governments cannot repeal or amend; it also demonstrates parliamentary sovereignty itself, for it maintains that no one party; legislature or individual has the power to curtail the supremacy of Parliament. As such, Parliament retains the power to repeal the European Communities Act 1972, where the UK chooses to relinquish membership of the EU.22 Should Parliament ever withdraw from the EU, the judiciary would no longer possess the authority to limit the sovereignty of Parliament. Should this ever occur it would redress the balance of the separation of powers doctrine which, at present, is skewered in favour of the judiciary.
It is apparent from the dicta of the precedent that Bob Rogers MP is incorrect in his assertion that Parliament is supreme. It has placed limitations on its sovereignty through its membership of the European Union.23 As Lord Hope articulated ‘Our constitution is dominated by the sovereignty of Parliament. But parliamentary sovereignty is no longer, if it ever was, absolute. Indeed, the impact of European integration has made extensive inroads into Dicey’s doctrine of legislative supremacy’.24 It is apparent that following accession to the European Union, parliamentary sovereignty has evolved to such an extent that it is consistent with the opinion formulated by Lord Chief Justice Coke in Dr Bonham’s Case that the judiciary has the authority to deem statutes enacted by the national Parliament invalid. However, it can no longer do so where it is of the opinion that it is contrary to the laws of God or were the statute is morally reprehensible, but rather where the statute is incompatible with a provision of EU law.25 Whilst it could be argued that the United Kingdom can withdraw from the European Union26, it is unlikely that it will relinquish membership of the European Union solely for the purpose of regaining parliamentary sovereignty as it willingly limited its rights upon accession. Whilst current rhetoric suggests that the issue for the United Kingdom in the upcoming referendum on EU membership is the erosion of parliamentary sovereignty, particularly in relation to the free movement of persons, it is apparent that the result of the referendum will also be dependant upon social; economic and global political considerations.
1Dr Bonham’s Case (1610) 8 Co Rep 114 per Lord Chief Justice Coke at 118.
2When the UK became a member of the EU it was known as the European Community. For the purpose of this article it will be known as the EU unless reference is made through quotations.
3Dicey, A.V., ‘An Introduction to the Study of the Law of the Constitution; 10th Ed, 1885, Macmillan Press, London at 39-40.
4 1 AC 648 at 723. Criticising the opinion of Lord Chief Justice Coke in Dr Bonham’s Case, Lord Reid stated in Pickin v British Railways Board [1974} AC 765 that ‘In earlier times many learned lawyers seem to have believed that an Act of Parliament could be disregarded insofar as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of Parliament was originally demonstrated by the Revolution of 1688 any such idea has become obsolete’. For a contrary opinion see Manuel v Attorney-General  Ch 77 per Sir Robert Megarry at 86.
5Mccarthy’s Ltd v Smith  ICR 785.
6Hereafter referred to as the ECJ.
7 ECR 585
8 ECR 1125
9Section 2(4) includes all EU law, both pre and post accession in its determination of EU provisions. Section 2(4) expressly stipulates that unless an EU provision is given effect under national law by means of enabling legislation, it should be assumed as having done so by virtue of section 2(4) of the 1972 Act.
10Formerly Article 249 EC.
11 ECR 1.
12Section 3(1) of the 1972 Act allows for national courts to consider and decide upon cases involving EU law.
13Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen  ECR 1891.
14Case 106/89 Marleasing SA v La Comercial Internacional de Aliementacion SA  1 CMLR 305.
15See Webb v EMO Air Cargo (UK) Ltd (No 2)  2 CMLR 990. See also Duke v Reliance Systems Ltd  AC 618.
16 ICR 785.
17Now Article 267 of the Treaty of the Functioning of the European Union (TFEU).
18Maccarthys Ltd v Smith  ICR 785 at 789.
19R v Secretary of State for Transport, ex parte Factortame  2 AC 85, (No 2)  AC 603.
20Now Article 267 of the TFEU.
21 1 AC 603 at 658-9.
22Article 50 TFEU states that any member state can choose to leave the EU.
23Subsequent limitations have also been placed upon it by the Human Rights Act 1998 and devolution.
24R (Jackson) v Attorney-General  UKHL 56,  1 AC 262 at 104.
25Ibid at footnote 1.
26Article 50 TFEU.
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