Critique the Impact of the Principle of Supremacy

In the constitution of the United Kingdom, Parliament is the supreme law making authority which has the power to make or unmake any law whatever. Since the UK joined the European Community on the 1st of January 1973, it is obliged to comply with European Law. In order to critique and to evaluate the two principles based on supremacy, we must first identify and understand the principles themselves both on its legal side and its structure. Such as how the concept of parliamentary sovereignty came about from the prerogative powers of the Crown to the Parliament as being the supreme law-making body. This meant that no law could be passed or enacted without being processed by the Houses of Parliament which consists of the House of Lords and the House of Commons. Moreover, what is the definition of parliamentary sovereignty that can be related to the United Kingdom? Such question will be covered later on.

Secondly, to identify the legal doctrines and sources of European Community law (EC law) and in what ways the provisions of European Community law can be applicable to its members of states and how does it affect its legal system as a whole. Such as when the two principles collide, which is to prevail and how do the courts deal with this? How the European Community law interacts with domestic law (the law within the member of state) and to what extent has the European Communities Act 1972 [1] affected the parliamentary sovereignty in the constitution of the United Kingdom. These are the objectives that will be evaluated later on.

The United Kingdom constitution, unlike other democratic countries has not got a written document or series of documents for it constitution. However, this does not mean it is non existent but it is simply uncodified. This crucial difference identifies that the United Kingdom constitution’s characteristics differ from those constitutions that are codified. Firstly, Britain’s growth through pragmatic incrementalism rather than being fixed by a codified constitution and therefore it is more flexible. However, because the constitution is uncodified, it is much more indeterminate with indistinct law. Having said that, Britain’s constitution can be found within materials such as statues, case law and political practices. However, because the constitution is uncodified, it is not clear as to which act is from the constitutional law or from other law in the United Kingdom [2] . Such as the Human Right Act which is seen as constitutionally important is no different in terms of status to the Wild Birds Protection Act [3] .

Over the years the United Kingdom prerogative power of the crown has been descended when a numbers of acts were enacted such as the Bill of Right 1688 [4] and the Act of Settlement 1700 [5] in the late 17th century. This not only confirmed that the Parliament will be the supreme law-making body but has also created an ambiguity in the constitution of United Kingdom as to where parliamentary sovereignty stands and what it is by definition. A signature definition in attempt to define such principle was given by AV Dicey and he stated that:

‘The principle of parliamentary sovereignty means neither more nor less than this, namely, that parliament thus defined has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognized by the law of England as having the right to override or set aside the legislation of Parliament.’ [6]

This definition by AV Dicey has clearly stated that parliamentary sovereignty is the supreme law making body in the constitution of England and that no other authority has the right to challenge this principle. As to the court it would therefore only be right to follow Parliament’s legislation as addressed, meaning that no one, nor the court itself could place judgment upon the supremacy of Parliament’s legislation. Although this appliance of the court is not defined in any statute, this sense of doctrine is foreseen in the common law [7] . This reinforced the fact that judges are there to interpret the law made by Parliament and not make it. The case of Manuel held that:

‘…the duty of the court is to obey and apply every Act of Parliament, and … the court cannot hold any such Act to be ultra vires. Of course there may be questions about what the Act means, and of course there is power to hold statutory instruments and other subordinate legislation ultra vires. But once an instrument is recognized as being an Act of Parliament, no English court can refuse to obey it or question its validity.’ [8]

Within the constitution of the United Kingdom, parliament’s legislation takes precedence even when in breach of international law, however, parliament does attempt to pass legislation which does not conflict with the international law. Having said that, when conflict does occur, from the case law point of view we see that the court had no instance on reviewing the parliament’s right to legislate, this is supported by the case Cheney and Conn [9] where Lord Justice-General Dunedin stated that:

‘In this court, we have nothing to do with the question of whether the legislature has of has not done what foreign powers may consider a usurpation in a question with them. Neither are we a tribunal sitting to decide whether an act of the legislature is ultra vires as in contravention of principle of international law. For us the act of parliament is supreme.’

This statement emphasizes further on the supremacy of Parliament passed legislation. If a statute made by parliament conflicts with international law, English court will still follow the word of the statute as Parliament made law is sovereign.

When devolution was introduced, such as the Scotland Act 1998, this raised ambiguity as to whether this would erode Parliament’s legislative powers over Scotland. However, this was not the case due to the Act under (s.28(7)) stated that ‘does not affect the power of the Parliament of the UK to make laws for Scotland’ [10] . Therefore, this act provided a barrier to secure the power of the Parliament.

Theoretically the United Kingdom parliamentary sovereignty has the power to overrule its former colonies, however in reality this is not the case due to the independence of these countries. Furthermore, as these countries are self-governed, they do not need to follow legislation passed by the United Kingdom Parliament. In the case of British Coal Corporation and The King [11] the Privy Council held that Canada had qualified to gain its legal independence and therefore was granted to a dominion.

In this sense, does it means there are no legal limitations upon parliament? However, sometimes parliamentary sovereignty can be cast into doubt. As Professor Calvert has said:

‘No one doubts that the powers of the UK Parliament are extremely wide…But that is not what is in issue. What is in issue is whether those powers are unlimited and one no more demonstrates this by pointing to a wide range of legislative objects than one demonstrates the contrary by pointing to matters on which Parliament has not, in fact, ever legislated.’ [12] .

To evaluate the principle of European Community law, we must first appreciate that the European Union and the European Community are two different bodies. This essay will identify the constitution and legal power of the European Community that it can enforce upon its member states.

The European Union consists of three “pillars” which build the foundation of the Union. The first pillar is the European Community, that is the economic areas which consist of feathers such as the Common market and Free Movement of Goods and Person. The Second Pillar is Common Foreign and Security Policy. Lastly, is the Police and Judicial co-operation in criminal matters [13] .

The European Commission is the policy-making and law enforcement institution and was established by Articles 211-19 European Community. Its first role is to establish policies to the present treaties that are in need of concern in the European Union. Such policies will then get passed onto the council for consideration and it is for the council to decide to enact as legislation or not. Not to mention the commissioners of the council are appointed by the member states, and it is for the European Parliament to approve such identity. Its second role is to regulate competition and enforce European law to it member states if such a state has breached its obligations under the Treaties (Article 226 EC) [14] .

The main law-making body of the EU is The Council of the European Union and it was created by Article 202 EC. As mentioned previously, it main role is decision making and any European legislations are enacted once approval has been granted, however, this is usually done with the assistance of the European Parliament. Furthermore, the council also has the role of measuring police and judicial cooperation in criminal matters. Lastly, it represents the community and the Union when entering into agreements with other countries or international organizations [15] .

Finally the European Parliament which was enacted by Articles 182-201 EC, acts as a discussion chamber with over 600 members from its member states. The number of membership of each member state is dependant on the member state’s population size. The chamber was originally established for discussion and debate on European Community policies. However, by 1957 its powers have increased to the point where proposals had to be considered by Parliament. A report was produced based upon the proposals from the European Commission by the Parliamentary Standing Committee. [16]

The Court of Justice of the European Communities is part of the judicial process and it is sits in Luxembourg. This body was established by Articles 220-44 EC. It gives ‘preliminary rulings’ and may direct national courts when they need assistance on clarification as to how a particular piece of European legislation should be interpreted. In England and Wales if the national court is unsure of a piece of European legislation, it will suspend the case and seek assistance from the Court of Justice. These are made under Article 234 EC, known as ‘Article 234 references’. In some instances member states may fail to implement a piece of European legislation. If a situation as such arises, the proceedings are heard by the Court of Justice.

The European Communities Act led to European law merging with domestic law of member states of the European Union [17] . It is quoted that:

‘All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognized and available in law, and be enforced, allowed and followed accordingly; and the expression ‘enforceable Community right’ and similar expressions shall be read as referring to one to which this subsection applies.’

This act established clearly that any directly applicable European law (no enactment of further legislation is needed by the member states) will become part of national law, regardless of whether it has been made or law that will be made in the future. On the other hand direct effect is about the enforceability rather than the incorporation of the European law.

Treaty articles are immediately enforced as law in member countries as soon as they are passed by the European Communities. No further procedure is required in order for the treaty article to be enacted in the member country. This is done via the European Communities Act [18] . The Van Gend case [19] states that if the terms of the treaty articles are ‘clear, precise and unconditional’ and it will have vertical direct effect (that is when the European law can be enforced against a member state in its own courts.).

Regulations state in Article 249 that it ‘shall have a general application’ and ‘shall be binding in every respect and directly applicable in all member states’. Since such sources are directly applicable under the Article of s.2(1) of the European Communities Act 1972, such sources will be applied to National law and if the date of effectiveness is silent, it will be publicized in the Official Journal on the following twentieth day [20] .

Lastly, directives are not as rigid and have a more flexible approach. The main concern with directives is the outcome and the route by which the directive is implemented is for the member states to decide. They are better equipped to enforce an effective method to ensure the outcome is achieved. Unlike Regulations Article 249 EC holds that: [21]

‘A directive shall be binding as to the result to be achieved upon each member states to which it is addressed but shall leave to the national authority the choice of form and method’.

This emphasizes that directives take into account the requirement of individual member states by providing leeway as to the method of implementation of the directive.

In the United Kingdom, international law is not part of the domestic legal system until it is enacted via an Act of Parliament, this is known as the dualist approach. This mechanism symbolized the supremacy of parliamentary sovereignty over this country. However, with the European Communities Act 1972, this provided the provision of European law to be directly applicable, meaning European law will automatically be part of the domestic legal system and that no further legislation is required by the Parliament. The enactment of this act is essential for the United Kingdom to be part of the European community as these obligations and exercise provides the right of membership within the communities under the community treaty [22] .

A question on supremacy arises as to which is to take precedence when conflict between the two principles occurs. With the two supremacy principles co-existing in the United Kingdom, Parliament has to interpret with European law in mind before it passes any legislation in the country. As Section 2(4) of the European Communities Act stated that:

‘Any enactment passed or to be passed… shall be construed and have effect subject to the foregoing provisions of this section.’

Such statement shows that there is a higher authority status in the European law than the domestic law in United Kingdom. Furthermore, this suggests that if any domestic law, legislation and Acts of parliament were to be inconsistent with European Community law, the European Community law shall take precedence and prevail [23] . Moreover, Section 3 of the Act instructs courts to consider issues that are related to European Community law based upon the principles laid down by European court. This shows it has taken effect on giving the European Community law its supremacy over the domestic law in the United Kingdom. Having said this, ambiguity still exists when legislation that was passed after the act is in conflict with European Community law. The question on whether the court should be obliged to the European Community Act and set the conflicting domestic legislation aside remained in doubt. When conflicts between European Community law and domestic law occurred, strong principle of statutory interpretation by the court was used and this approach was explained by Lord Denning MR in Macarthys and Smith [24] as:

‘In construing our statute, we are entitled to look to the Treaty as an aid to its construction; but not only as an aid but as an overriding force. If on close investigation it should appear that our legislation is deficient or is inconsistent with Community law by some oversight of our draftsmen then it is our bounden duty to give priority to Community law. Such is the result of 2(1) and (4) of the European Communities Act 1972.’ [25]

Moreover, such approach was used in Garland and British Rail [26] , where Mrs Garland claimed that an employer was being more generous in concessions with retired male employees than female ones; thereby she claimed that the employer was discriminating unlawfully. However, the literal interpretation of the Sex Discrimination Act 1975 [27] of the domestic law showed inconsistencies with the European Community treaty provision for equal pay. In the end, the House of Lords managed to construe the Act with the article and saw it as consistent. Applying Lord Diplock, he agrees the court to take such approach by stating that

“However wide a departure from the prima facie meaning of the language of the provision might be needed in order to achieve consistency.” [28] .

This approach was later referred as ‘rule of construction’ approach, suggesting that the court was obeying the introduction of European Community Act section 2(4), which gives guidance on how should an act be formulated in construe with the European Community law [29] . This approach was used in Pickstone and Freemans [30] . In this case there was doubt on whether amendment should be applied to a piece of legislation that was passed in 1983, on the subject of fair payment, as it may not produce the required outcome. The House of Lords had to add additional words in order to ensure that an absurd result would not occur where parliamentary sovereignty and European Community law would contradict each other. Lord Oliver stated that:

‘[A] construction which permits the section to operate as a proper fulfillment of the United Kingdom’s obligation under the Treaty involves not so much doing violence to the language of the section as filling a gap by an implication which arises, not from the words used, but from … the manifest purpose of the legislation, by its history, and by the compulsive provision of section 2(4)…’ [31]

This ‘rule of construction’ approach provides leeway for the courts in the United Kingdom to solve inconsistencies between the domestic law and the European Community law, without challenging parliamentary sovereignty.

However, in some instances, when domestic law does not construe with European Community law, even when such strong principles of statutory interpretation are applied, one principle has to prevail in the court. The case of Felixstowe Dock Railway Co and Britain Transport Docks Board [32] Lord Denning suggested:

‘It seems to me that once the Bill is passed by Parliament and becomes a statute that will dispose of all discussion about the Treaty. These courts will have to abide by the Statute without regard to the Treaty.’

However, with the doctrine of the supremacy of European Community law stems from the European Court of Justice which illustrated that in situations of doubt in the courts, European law must be seen as the supreme authority. The case of Costa and ENEL [33] , the European Court of Justice made it clear and reinforced the primacy of Community law over domestic law and therefore national courts are bound to apply European law when in conflict with domestic law [34] . Moreover, the case of Factortame and secretary [35] illustrates this point further. This case involves Merchant Shipping Act 1988. The main argument in this case was that the Act was allegedly discriminating against European Union citizens on ground of nationality. The outcome of this case was that in the event of a conflict between European Community law and domestic law of its member states, European Community law must prevail. This was further supported by the judgment of Lord Bridge:

‘Under the 1972 Act it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable Community law.’ [36]

This statement emphasizes that supremacy of the European Community law over domestic law, which effectively overrides the principle of parliamentary sovereignty. However, it was the intention of the United Kingdom to enter the European Community and it did so by signing the Treaty of Rome. When it enacted, it was fully aware that it must comply with the provisions of European Community law, hence, limiting its parliamentary sovereignty over United Kingdom. This is supported by Lord Bridge statement which stated that:

‘Whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 it was entirely voluntary… when decisions of the Court of Justice have exposed areas of United Kingdom law which failed to implement Council Directives, Parliament has always loyally accepted the obligation to make appropriate and prompt amendments. Thus there is nothing in any way novel in according supremacy to rules of Community law.’ [37]

Nevertheless, there are methods of reversing the provisions of a previous Act. Express repeal is where Parliament expressly states that it wishes to change a previous Act of Parliament. In terms of implied repeal, that is if parliament wishes to introduce an Act which differs from a previous act, the later one will be used and the previous will be disregarded. No Parliament can limit the powers of a future Parliament to repeal. This is known as entrenchment. However, with the European Community Act 1972, it was stated by Laws LJ in the case of Thoburn and Sunderland [38] that this Act was a ‘constitutional statute’ and thereby it is not subject to implied repeal. Should Parliament ever wishes to disregard such an Act, it will have to do so ‘expressly and unequivocally’ [39] . Thereby, it is right to say there is still a great degree of parliamentary sovereignty present in the constitution of the United Kingdom, as Parliament still has the ability to withdraw its membership of the European Community. Therefore, this means that the United Kingdom is not bound by the supremacy of European law.

In conclusion, this essay has evaluated the principles of parliamentary sovereignty and the supremacy of EC law. It is evident that in the UK, Parliament is the supreme law making authority and cannot be challenged by anyone even when in breach of provisions of international law, due to its dualist approach. Parliament’s supremacy stretches so far that it has the ability to bind any territory including dominions and former colonies of the British Empire. However, this is only a legal theory and in practice these countries may disregard Parliament’s Acts. Each Parliament is supreme and is superior to its predecessor, which means that it can reverse a provision of an Act which was implemented by a former Parliament. It can achieve this via express or implied repeal. No Parliament can restrict the ability of a future Parliament to repeal; this is known as entrenchment. This would limit continuing parliamentary sovereignty. The supremacy of Parliament is defined by Albert Dicey in his book ‘Introduction to the Study of the Law of Constitution’ where he stated that ‘no person or body is recognized by the law of England as having the right to override or set aside the legislation of Parliament’. Clearly, this illustrates the sovereignty of Parliament. The European Community is one of three pillars which provide the foundations of the European Union. Once the Treaty of Rome had been signed, the European Community Act was brought into force, as an Act of Parliament was required for European law to be incorporated into the English legal system. There are several different intuitions which make up the legal framework of the European Communities, as discussed above. The primary sources of European Community law come in the form of treaty articles, regulations and directives. It is evident that these two principles may come to conflict with each other. As a general rule, European law prevails over domestic law of its member states. There are several cases which demonstrate the supremacy of European Community law in the constitution of the United Kingdom, such as Macarthys and Garland. All these provide an overview on how European Community law has an effect on parliamentary sovereignty in the constitution of the United Kingdom; nevertheless, parliament still holds the right to disregard the European Community Act if it ever wishes to. Should this ever become reality, the purpose of the European Community would fail and Parliament would not be bound by any other authority. On the other hand, the more likely scenario that could happen is that European law’s supremacy will continue to grow at the expense of parliamentary sovereignty.