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The concept of supremacy of EU law has always been particularly problematic for the UK legal system, not least concerning its interaction with the principle of parliamentary sovereignty. The concept of supremacy provides that where there is a conflict between domestic and EU law, preference must be given to the latter, if necessary disapplying the former. This suggests, however, that Parliament is restricted from legislating contrary to EU law, whilst the courts must in certain circumstances disregard Acts of Parliament altogether. This essay explores the relationship between the UK constitution and the principle of supremacy, discussing significant developments in jurisprudence leading to current events in Brexit.
The supremacy of EU law is one of the most fundamental and long-standing principles of the Union, and yet is not to be found formally agreed upon within the EU Treaties. Rather, it was cautiously suggested in Van Gend en Loos v Netherlands Inland Revenue Administration and more fully expressed in Flaminio Costa v E.N.E.L. The Court of Justice of the European Union (‘CJEU’) adopted a clearly teleological approach, drawing from the Member States’ partial limitation of their sovereignty as a consequence of EU membership, and the necessity for the supremacy of EU law as part of the Union’s new legal order. Craig and De Búrca extrapolate four arguments relied upon by the CJEU in their justification for the supremacy of EU law.
The first “contractarian” argument appeals to supremacy as something which flows necessarily (if not explicitly) from the Member States’ agreement to enter into the Union. This is reflected in Costa where the court discusses the transfer by Member States of ‘real powers stemming from a limitation of sovereignty,’ deemed to have taken place through the Treaties. The second “functional” argument follows that the very aims of European integration through the Treaties would be undermined if Member States could unilaterally alter EU law. A third “egalitarian” argument which follows from the second, suggests that discrimination would follow if Member States could indeed unilaterally alter EU law, with provisions having a varied application and some states ‘taking the benefits of EU law without accepting all the burdens.’ This argument again makes indirect reference to the bargain struck between the Member States, advocating for the equal sharing of those benefits and burdens of EU membership. Finally, the “analytical” argument states that EU law would be effectively meaningless if it were ‘merely contingent’ to contrary legislation enacted by an opposed Member State.
The supremacy of EU law has raised challenges within the constitutional arrangements of a number of Member States, with the German Constitutional Court in particular producing a wealth of jurisprudence concerning the nature of EU membership. The critical issue within the UK constitution is the principle of parliamentary sovereignty, which dictates that an Act of the Queen sitting in Parliament – that is, primary legislation – is the highest source of law in the UK. This principle incurs many things which interact with the supremacy of EU law: there is no legislative superior to Parliament; Parliament can legislate as it wishes, and therefore cannot be bound even by itself; and perhaps most critically in practice, the courts have ‘no inherent powers to invalidate, strike down, supersede or disregard the provisions of an unambiguous’ Act of Parliament.
The conflict between these two constitutional principles of the EU and the UK is readily apparent. Each claim legislative superiority, and whilst EU law would require national courts to give preference to provisions of EU law where they conflict with domestic, parliamentary sovereignty prohibits any such inherent power with the judiciary. The initial responses of the UK judiciary could be categorised into three broad groups. At one end of the spectrum some judges maintained the orthodoxy of parliamentary sovereignty, whilst towards the other end courts accepted the need to purposively interpret UK law in compliant with EU norms in principle, although often felt unable to do so in practice.
Most typically, however, the judiciary ‘sought to blunt the edge of any conflict between the two systems’ by actively reading UK legislation, so far as is possible, in conformity with conflicting EU provisions. This arguably pushed the bounds of statutory interpretation further than ever before, advocating for a readier departure from the preferred literal approach to interpretation in favour of a more constructed approach. Nevertheless, whilst both the Court of Appeal and House of Lords each endorsed the position that effect must be given to EU law in accordance with section 2(4) of the European Communities Act 1972, members of both courts maintained the view that ‘if Parliament chose expressly to legislate contrary to Community law, that intention would be given effect by the judges.’ Thus, even with the more open and flexible approach to statutory interpretation as a result of the supremacy of EU law, the courts appeared to simultaneously retain an incompatible interpretation of parliamentary sovereignty.
The seminal moment of change occurred with the Factortame litigation, which includes numerous challenges heard up to the House of Lords and beyond to the European Courts. The litigation concerned inter alia the claim that provisions of the Merchant Shipping Act 1984 were incompatible with various articles of the EC Treaty. Upon first reaching the House of Lords, the Court upheld an orthodox view of parliamentary sovereignty and their ability to review primary legislation. In Factortame Ltd. (No. 1) the House of Lords maintained the traditional position that the courts lacked any power to grant interim – or indeed any – relief against provisions of an Act of Parliament. However, a preliminary reference was made before the CJEU, which naturally considered that principles of national law could not be relied upon in preventing the operation of EU law, owing to the supremacy of the latter.
The response of the House of Lords in Factortame Ltd. (No. 2) was little short of revolutionary. Bound as they were by the judgement of the CJEU, the Court proceeded to grant interim relief against primary legislation, with Lord Bridge commenting that national courts being free to grant such relief in favour of conflicting EU law ‘is no more than a logical recognition of [its] supremacy.’ Notably, the judgment provides a largely contractarian account whereby Parliament had transferred part of its sovereignty as part of the bargain for being an EU Member State. This apparent move against the orthodox interpretation of parliamentary sovereignty gave rise to considerable re-evaluation of UK constitutional principles. For example, the renowned Professor Wade considered this to be a judicial revolution, regarding orthodoxy to be correct but within the power of the courts to alter. T. R. S. Allen offers a different analysis, criticising orthodox parliamentary sovereignty as flawed from the outset, and instead suggesting that principles of democracy and the rule of law may already permit courts to disregard irreconcilable legislation.
Indeed, the position of parliamentary sovereignty has been the subject of much jurisprudence since Factortame; most notably, Lords Steyn and Hope, and Baroness Hale formally recognised in R (on the application of Jackson) v Attorney General that parliamentary sovereignty may be a more limited concept than the orthodox account suggests. Whilst a full exploration of the available jurisprudence is beyond the scope of this essay, the supremacy of EU law and the result in Factortame certainly brought considerable doubt to fundamental constitutional principles in the UK.
It is likely that Brexit and the litigation in R (on the application of Miller) v Secretary of State for Exiting the European Union will provide the final assessment of how the supremacy of EU law fits within the UK constitution. Although the case substantively concerned the government’s power to withdraw from the EU using the prerogative, this required that the Supreme Court give a full exploration of the constitutional relationship between the UK and EU. In brief, the majority of the Court gave an ‘affirmation of fundamental constitutional principle – most obviously [in respect to] the sovereignty of Parliament.’ At the root of the Court’s analysis was the fact that Parliament, through the European Communities Act 1972, introduced EU law as a source of domestic law and ‘gave that source an overriding supremacy in the hierarchy of domestic law sources.’ Viewed from this perspective, the supremacy of EU law can be considered compliant even with an orthodox view of parliamentary sovereignty, on the basis that such supremacy was accepted by Parliament through the 1972 Act. The very act of withdrawal from the EU can be interpreted as a further affirmation of orthodox sovereignty – Parliament has elected to end its current relationship with the EU and withdraw from the Union, thereby unmaking the 1972 Act.
It was written above that the recognition of supremacy in Factortame gave an apparent move away from the orthodox view of parliamentary sovereignty. However, it ought to be recalled that this view only provides that there is no inherent power of the courts to review primary legislation. By understanding how the supremacy of EU law was in essence effected by Parliament in the first place, the decision in Factortame in fact remains in perfect compliance with an orthodox account of parliamentary sovereignty. From this viewpoint, it might be argued that the difficulties in reconciling supremacy within the UK constitution have arisen from an absence of appreciation of the bargain struck by Parliament through the European Communities Act. It is relevant to remember that by the time Parliament enacted this legislation in 1972, Costa and the principle of supremacy of EU law had already been established for eight years, and it can fairly be assessed that Parliament therefore entered into the Union with its eyes wide open.
Bibliography
Legislation
European Communities Act 1972
Cases
Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECLI:EU:C:1963:1.
Case 6/64 Flaminio Costa v E.N.E.L. [1964] ECLI:EU:C:1964:66.
Case 213/89 R v Secretary of State for Transport, ex parte Factortame Ltd. [1990] ECLI:EU:C:1990:257.
*
Duke v GEC Reliance [1988] A.C. 618.
Felixstowe Docks Railway Co. v British Transport Docks Board [1976] 2 C.M.L.R. 655
Garland v British Rail Engineering Ltd. [1983] 2 A.C. 751.
Litster v Forth Dry Dock [1990] 1 A.C. 546.
Macarthys Ltd. v Smith [1981] Q.B. 180
R (on the application of Jackson) v Attorney General [2005] U.K.H.L. 56
R (on the application of Miller) v Secretary of State for Exiting the European Union [2018] A.C. 61.
R v Secretary of State for Transport, ex parte Factortame Ltd. (No. 1) [1990] 2 A.C. 85.
R v Secretary of State for Transport, ex parte Factortame Ltd. (No. 2) [1991] 1 A.C. 603.
Commentary
Barnett H., Constitutional & Administrative Law (12th ed. Routledge 2017)
Berry E., Homewood M. J. and Bogusz B., Complete EU Law: Text, Cases, and Materials (2nd ed. Oxford University Press 2015)
Craig P., ‘Britain in the European Union’ in Jowell J. L., Oliver D. and O’Cinneide C. (eds.), The Changing Constitution (8th ed. Oxford University Press 2015)
Craig P., De Búrca G., EU Law: Text, Cases, and Materials (6th ed. Oxford University Press 2015)
Elliott M., ‘The Supreme Court’s judgment in Miller: in search of constitutional principle’ (2017) 26(2) Cambridge Law Journal 257
Kaczorowska-Ireland A., European Union Law (4th ed. Routledge 2016)
Le Sueur A., Sunkin M. and Murkens J. E., Public Law: Text, Cases, and Materials (3rd ed. Oxford University Press 2016)
Lord Bingham, ‘The Rule of Law and Sovereignty of Parliament?’ (2008) 19(2) King’s Law Journal 223
Loveland I., Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction (7th ed. Oxford University Press 2015)
Woods L., Watson P. and Costa M., Steiner & Woods EU Law (13th ed. Oxford University Press 2017