EU Supremacy And Direct Effect

Parliament Has Not Remained Sovereign Throughout the UK’s Membership of the EU

Parliamentary sovereignty is often regarded as one of the most important constitutional principles in the United Kingdom. Although it is so highly regarded, it has arguably lost its power and significance due to membership with the European Union. I believe that since joining the EU, the parliament of the UK has lost its sovereignty, in the strict orthodox sense. Using the Diceyan definition of parliamentary sovereignty, I will argue that parliament has lost its sovereignty in the UK because of EU supremacy, the enactment of the European Communities Act 1972, and by using opinions from recent case law. First, I will go into the definition of parliamentary sovereignty as well as the different views and theories associated with it. Secondly, I will use case law to show how the principles of EU supremacy and direct effect came into force. Thirdly, I will discuss the impact of the ECA 1972 and the academic opinions surrounding this. Next, using recent case law I will discuss the opinions of members of the judiciary and the impact that they have on sovereignty. Finally, I will discuss views that challenge my argument and explain why they are incorrect.

The Orthodox view vs. Manner and Form

According to Dicey, parliamentary sovereignty is the principle that the parliament of the UK can pass laws of any substance, as long as they do not bind successors. These laws also cannot be overridden by any person or body besides succeeding parliaments. Although the source of this constitutional principle is unknown, it has been widely accepted since the revolution of 1688. The theory of Continuing Sovereignty is based off of the Diceyan definition, and opposing that view is the Manner and Form theory. The Manner and Form theory suggests that as long as parliament can still legislate on any subject matter, if the manner and form in which they legislate is limited, parliament still remains sovereign. Dicey’s definition has been the authoritative definition since he coined the term with most of his critics accepting it, and for that reason, I will be using his orthodox view throughout my essay.

EU Supremacy and Direct Effect

The supremacy of EU law is in direct contrast with the principle of parliamentary sovereignty in the UK. EU law supremacy is the principle that EU community law will override the domestic law of a member state when there is a conflict, which was established in Costa. In this case, the Italian state electrical authority passed a law that was inconsistent with the EEC treaty. The ECJ ruled that because the law of the state was incompatible with the community laws it could not prevail. Following Costa, other cases such as Internationale Handelsgesellschaft enforced the principle, showing the impact of EU membership. Another principle that was being developed through case law around the same time was the direct effect of EU membership. The seminal case that did this was Van Gend en Loos, where a company that was importing chemicals incurred higher tax rates than what the EEC allowed and was able to assert their rights under the EEC in a national court. This case established the fact that certain provisions of EU law are directly effective because they create individual rights in domestic courts of member countries. These two principles have a very large impact on the parliamentary sovereignty of member states of the EU and directly challenge Dicey’s view. Next I will be analyzing how UK’s membership to the EU changed parliamentary sovereignty by way of the ECA 1972, with EU supremacy and direct effect being two of the main components.

The European Communities Act 1972

When the UK joined the EU in the early 1970’s the ECA 1972 was enacted to incorporate treaties of the EU into the UK. Section 2(1) of the ECA states, “all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties’ shall have ‘legal effect’ and be enforceable in the UK”. Another important section of the ECA is section 2(4) which says “any enactment passed or to be passed… shall be construed and have effect subject to the foregoing provisions of this section”. It seems that these two sections have the effect of binding future parliaments in the UK, directly contradicting the orthodox view of parliamentary sovereignty. Although this was noticed by academics when the act came into force the exact impact that it would have was not shown until 1991.

One case that has demonstrates the effect of the ECA 1972 on UK domestic law is MacCarthys. In this case the applicant, a woman, claimed discrimination based on the Sex Discrimination Act 1975 of the UK which stated that men and women working the same job simultaneously should be paid the same wage. This contradicted an EU law stating that men and women are to be paid the same. The majority of the judges disregarded the EU law, and made a decision based on the domestic law. The applicant took the case to the ECJU, which reiterated that the EU law overrides the domestic law. Lord Denning dissenting, stated, “By so construing the Treaty and the statutes together we reach a very desirable result… and that this country will have fulfilled its obligations under the Treaty”. Although the majority of judges ignored the EU law even with the enactment of the ECA 1972, it is clear that the supremacy of EU law is starting to be taken more seriously.

The Factortame case was the leading decision showing the impact of the ECA 1972 on parliamentary sovereignty and what would happen when the parliament creates and act that conflicts with EU law. In Factortame, it was up to the judges to determine if the Merchant Shipping Act 1988 conflicted with the EU’s Common Fisheries Policy. This would mean that the supreme act needed to be decided, the domestic act of the UK or the EU policy. After consulting the CJEU, the House of Lords decided that in a case where domestic law was at conflict with EU law, the domestic court would have to set aside the domestic law. This showed the supremacy of EU law in action and resulted in the term “disapplied” being created to describe what would happen to the domestic act.

Many academics have attempted to describe what happened to parliamentary sovereignty as a result of this case. Wade argued that there was a constitutional revolution which is slightly extreme but I believe that his reasoning behind the claim is valid. He argues that parliamentary sovereignty is an ultimate legal principle which has no legal explanation and is “powerless to change by legislation”. If as a result of the ECA 1972, parliament has successfully bound its successors, then this act of legislation has taken away the sovereignty of the UK parliament. Barber critiques Wade’s argument that a revolution has occurred but argues that the courts did change parliamentary sovereignty and that they had possessed the political capacity to do such. Although he doesn’t completely agree with Wade he does seem acknowledge that Factortame has caused a fundamental change to occur. He goes on to suggest, “the House of Lords should have concluded that the conflict between European law…and the Merchant Shipping Act 1988 resulted in the 1988 act taking priority, repealing the 1972 act so far as necessary”. By suggesting that in order to preserve parliamentary sovereignty the House of Lords should have held that the 1988 act took priority, Barber’s opinion shows that the constitutional principle was fundamentally altered due to the case. I believe that Wade’s and Barbers accounts of the cause show that was parliamentary sovereignty was altered to the point that it no longer exists in the orthodox view after this decision. Factortame set the debate about parliamentary sovereignty into motion and next I will discuss how recent case law reflects the debate and why it shows that parliament is no longer sovereign.

Recent Case Law

The Jackson case is another decision that has a huge impact on the principle of parliamentary sovereignty. Although it does not involve the EU, the obiter statements of three of the judges describe the state of parliamentary sovereignty at the time of the case, which occurs during membership of the EU. The case involves the Parliamentary Acts 1911 and 1949 and whether the 1949 act is primary or secondary legislation. It was determined that the 1949 act was in fact parliamentary legislation and created a new pathway for creating legislation. In the obiter statements Lord Steyn states, “The classic account given by Dicey of the doctrine of the supremacy of Parliament…can now be seen to be out of place in the modern United Kingdom”. Lord Steyn was not the only judge to note this in Jackson. Lord Hope also stated, “Parliamentary sovereignty is no longer, if it ever was absolute”. Although these comments were from only two out of the nine judges on the panel, it shows a clear change in the UK constitution. These statements clearly support my argument that according to the Diceyan orthodox view, parliamentary sovereignty has been lost. Another case that has challenged parliamentary sovereignty is Miller. The majority in this case come up with the theory of a conduit pipe that explains how the law of the EU is incorporated into the UK. They explain by saying, “So long as the 1972 Act remains in force, its effect is to constitute EU law an independent and overriding source of domestic law”. I believe that this goes to show that parliamentary sovereignty was lost when the ECA 1972 was enacted, and it is still being recognized and reiterated in cases today.

Challenges to My Argument

The biggest challenge to my argument that parliamentary sovereignty is lost in the UK is the Manner and Form Theory. It is in direct conflict with the Diceyan view in that it suggests that in certain circumstances, parliament can bind its successors. I disagree with the Manner and Form theory because I think that the very essence of parliamentary sovereignty is that there is no limit what parliament can legislate in any way. Imposing limitations on the manner and form in which this is done is still imposing a limit parliament, and diminishing their power, something which is not supposed to be possible. In Wade’s view, parliament can only be limited in one way and that is that, “it cannot detract from it’s own continuing sovereignty”. He also mentions that because the power that Parliament has is from the common law, if it was going to be altered it must be in that way, not by a legal order.

There is also an issue of just how much of an impact changing the manner and form that legislation is enacted can have. The problem is shown by Alison Young when she asks the hypothetical question, “What if Parliament were to bind its successors as to the manner and form in which legislation is to be enacted which resulted in it being impossible for Parliament to enact legislation of a particular content?”. I agree with this reasoning and think that this hypothetical situation could easily turn into a real possibility. If by changing the manner and form of legislation it results in restricting the substance of legislation, I would argue that there is no longer any parliamentary sovereignty at all.

Another counter argument is that in Factortame the parliament at the time voluntarily accepted the limitation and that because of this membership with the EU did not cause parliamentary sovereignty be lost. This is mentioned by Lord Bridge when he justifies the decision to disapply an act of parliament. This is clearly not a very strong argument. The suggestion is that in enacting the ECA 1972 the parliament at the time voluntarily gave up their sovereignty and so therefore because it was voluntary parliament can still remain sovereign. This is clearly circular and although it is a good attempt to explain the judgment the reasoning behind it is not sound and Lord Bridge is incorrect in acknowledging that no change has occurred. Another argument that comes along with Lord Bridge’s statement is that the parliament could repeal the ECA 1972 at anytime, and that if they did then parliament would regain complete sovereignty. This may be true but as we can see from the current political situation and Brexit, that untangling the ECA 1972 and UK withdrawing from the EU is much more complicated than any of the academics who suggested this as a fix for regaining parliamentary sovereignty seemed to have thought.

In conclusion, parliamentary sovereignty was lost was when the UK joined the EU. It was lost because of the supremacy of EU law, and the principle of direct effect which was shown in Costa and Van Gend en Loos. The ECA 1972 has also changed the constitutional principle fundamentally which was shown in Factortame. There has long been a debate about the result of Factortame on parliamentary sovereignty, but because Manner and Form theory is not sufficient, the orthodox view must be used. According to the orthodox view, parliamentary sovereignty was changed by the courts in 1991 and it has never been regained. Since 1991 there have been recent cases which also prove that parliamentary sovereignty is no longer absolute. With the accumulation of all of these facts it is clear that parliament is no longer sovereign. Parliament can now successfully bind their successors and the courts can change the power that legislators have which would not be possible if parliament was sovereign.

Bibliography:

1. Barber, N. ‘The afterlife of Parliamentary sovereignty’ (2011) 9 I.J.C.L. 144
2. Dicey, A.V. Introduction to the Study of the Law of the Constitution, 10th edn, (Macmillan,1959)
3. Gordon, M. Parliamentary Sovereignty in the UK Constitution: Process, Politics and Democracy (2015, Bloomsbury Publishing)
4. Gordon, M. ‘The Conceptual Foundations of Parliamentary Sovereignty: Reconsidering Jennings and Wade’, (2009) P.L. 519
5. Wade, H. ‘The Basis of Legal Sovereignty’ (1955) C.L.J. 172
6. Wade, H. ‘Sovereignty—Revolution or Evolution?’ (1996) 112 L.Q.R. 568
7. Young, A. Parliamentary Sovereignty in the UK Constitution: Process, Politics and Democracy (2015, Bloomsbury Publishing)