The European Union and its Effect

Discus the United Kingdoms accession to the European Union and its effect on the doctrine of parliamentary sovereignty.

It can be argued that since the United Kingdoms accession to the European Union the doctrine of Parliamentary sovereignty has been greatly effected. This assignment will be discussing the fundamental effects and implications caused when the UK predominantly became a member of the European Union in particular the effect on the doctrine of parliamentary sovereignty.

Britain became a member of the European Economic Community in 1973, when parliament accepted the European Communities Act (1972), criticised by Anthony King as having “profound constitutional consequences”. However, it is regarded that this undermines the English law and the Supremacy of Parliamentary Sovereignty. Particularly, Section 2(1) of the Act introduces E.C law into the United Kingdom’s domestic law, stating that the law should be ‘enforced, allowed and followed accordingly’. This however, compromises the unrestricted rule of the doctrine of Parliamentary sovereignty. Lord Denning states a rather pragmatic approach to the Law; in the case of Bulmer v Bollinger he states “The Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back”.

Previous to the U.K joining the E.C, Britain had absolute control over the laws implemented. Professor Albert Venn Dicey stated that Parliamentary Sovereignty is “The very keystone of our constitution”. Parliamentary Sovereignty can be divided into three significant fundamentals. Firstly, Parliament has the right of granting or revoking any law as Dicey asserted ‘parliament has the right to make or unmake any law whatever”. Under the European Communities Act (1972), Parliament only have jurisdiction to do this if the legislation is not an EU regulation or directive, but only a domestic legislation. Therefore, Parliament cannot for example just ignore an EC Act which should be implemented; this can be seen in the case of, Commission of the EC v United Kingdom. Secondly, Parliament cannot bind its successors, which is significant as this formerly meant that the government party could not implement legislation that would come into force when a different government party group came into power. Therefore, this suggests that the UK government cannot pass any legislation that would in future conflict with any planned EU legislation. Lastly, the courts can not question a act of Parliament this is in accordance to the doctrine of Parliamentary Sovereignty, however, this is not always the case.

Article 177 EC expresses the abdication of the role of the House of Lords as the highest court in England and Wales. Nevertheless, this article grants a domestic court to only be able to refer to the European Court of Justice for reference only in cased where they are not able to distinguish a remedy to a case that involves UK law due to EU law; this can be illustrated by the case of Factortame.

obligatory Acts of the European Union are, Regulations, Directives and Decisions. Under Article 189(2) ‘a Regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States’. As they apply straight away to our domestic law is can be regarded that they undermine English law. Regulations are directly applicable which means that every member state must apply it as a law immediately. The ECJ have illustrated in Leonesio (1973), which not only is national implementing legislation unnecessary, it is illegal. The Community legal order is however different from international law, as it creates rights for citizens which can be enforced before national courts; this is Direct effect. In Van Gend en Loos (1963) it was held that Treaty provisions, that fall under the criteria have vertical direct effect. This imposes obligations on national governments and creates equivalent rights for citizens. Nevertheless, Article 189 states that Regulations are directly applicable, therefore, only apply in the Member States which does not require the legislation to be implemented.

According to Article 189 a ‘Directive shall be binding, as to the result to be achieved, upon each member state to which it is addressed but shall leave to the national authorities the choice of form and methods’. However, these are not like Regulations therefore, they are directly applicable. Usually the ECJ released a directive which the member state has to implement it, within a set time limit. The case of Francovich v Italy (1991) illustrates the implications that a member state can face for failing to provide rights required by a directive. Treaty obligations could be conferred on individuals as well as Member States, under horizontal direct effect as can be seen in the case of Defrenne v Sabena (No. 2). The ECJ held in the case of, Marshall v Southampton and South West Hampshire Area Health Authority (1986), that a Directive may be invoked against the state, even when its against in a private institute such an employer, it could not be invoked directly against an individual.

It is regarded that there are three main limitations of the doctrine of direct effect. Firstly, not all provisions are able to convince the acceptable criteria. Secondly, directives are not directly effective until the implementation date has passed; and finally, directives do not have horizontal direct effect.

The implication of Britons membership of becoming part of the EU on our constitution law may be regarded as unsatisfactory due to its impact on Parliamentary Sovereignty. In the article ‘The Undeniable Supremacy of EC Law’ (1993) New Law Journal, Emma Chown states that however disinclined some may be to acknowledge it; community law takes priority over our domestic law. Since becoming a member of the EC in 1973, the UK has been subjected to Article 189 which holds regulations and directives to be binding upon all member states. In addition, Article 5 requires that member states agree ‘to ensure fulfillment (their Treaty) obligations’. Examples of the supremacy of EU law can be seen in the cases of Marleasing SA v La Commercial International De Alimentation SA (1989), Francovich (1991), and the Factortame litigation.

The case of Marleasing, was a question of whether a private individual could appeal the requirements of a directive against another private individual (horizontal effect) where the member state had not implemented the directive into national legislation. ECJ confirmed in this case that the doctrine of direct effect provided an action against the defaulting member state but not against another private individual. Nevertheless, when using the Von Colson principle the ECJ concluded that domestic law must be interpreted in compliance with the implemented directive. This means that national courts must apply a directive even if it has not been implemented into domestic law, this fundamentally undermines parliamentary sovereignty.

In an event of a conflict between EU and domestic law, the ECJ has always stated that EU law prevails; this can be seen in the case of Van Gend En Loos (1963). In the case of Costa v ENEL (1964) which was in relation to legislations of Italy that were irreconcilable with a variety of Treaty Articles. The Milanese court required direction from the ECJ under Article 177. The ECJ confirmed that Community law binds both member states, individuals and also that the national courts of the member state are bound to apply community law. The ECJ are willing to accept new changes however, the UK courts do not, as can be seen in the case, Simmenthal (1978).

In the early 1970s British judges recognised the legal impact of the European Communities Act 1972 mainly on domestic issues with a European element; Lord Denning asserted this in the case of Bulmer v Bollinger (1974). The early generous and realistic approach was seen in the case of Macarthys v Smith (1981) where Lord Denning discussed the feature between mere inconsistencies and deliberate derogation. Where the incompatibility is inadvertent, he suggested that English Courts should apply EC law, on the assumption that Parliament anticipated to perform its treaty obligations. On the other hand, where the incompatibility was deliberate, he was of the belief that English law should triumph. In this case Lord Denning asserted that “it has priority. It is not supplanting English law. It is part of our law which overrides any other part which is inconsistent with it”. This view was also confirmed in the case of Garland v BREL (1983), however, it was not until the Factortame litigation that the true implication on parliamentary sovereignty became noticeable.

The cases of R v Secretary of State For Transport Ex Parte Factortame (1989), change Lord Denning’s principle. In this case the UK courts applied for an Article 177 reference. Due to the extensive time it take to respond to reference, the UK applied for an additional ruling asking if they could in the meantime still apply the Act as it conflicted with Articles 52 and 221 of the Treaty of Rome. The ECJ ordered the UK to temporarily suspend the 1988 Act, which the UK parliament had not done before. Therefore, this relentlessly undermined the supremacy of the doctrine of parliamentary sovereignty. MR Bingham L.J. held that that ‘a UK statute is no longer inviolable as it was’ and that ‘setting aside an Act of Parliament is a constitutional enormity’.

In the case of R v Secretary of State For Employment Ex Parte Equal Opportunities Commission (1992) the House of Lords held that a declaration should be made against the provisions of the Employment Protection (Consolidation) Act 1978. This was incompatible with Article 119 of the Equal Pay Directive; this case is an excellent example of the supremacy of European law over the law of the member state. This can also be seen a direct attack on the legislation that derives from Parliament in this country and is evidence that our domestic legislation still conflicts with European legislation.

In conclusion, throughout the past twenty years the EU has been gradually deteriorating the role of the UK parliament and this will only maintain as indicated by The Treaty of Amsterdam that sets out complex procedures that will try to bring about the common immigration and asylum policy into effect, therefore, giving greater powers to the EU and further still reducing the role of the British Parliament and extensive decline in Parliamentary Sovereignty. From the time Britain joined the EEC it had indirectly acknowledged the primacy of Community law over national law and thus the termination of Parliamentary Sovereignty.