After considering how similar legislation works in other countries allowing judges to strike down offending legislation was not considered consistent with supremacy of parliament.
In R v Secretary of State for Employment ex parte Equal Opportunities Commission [1992] the House of Lords ruled that provisions in the Employment Protection (consolidation) Act 1978 were indirectly discriminatory and incompatible with the equal treatment directive and article 119 respectively. This case quickly led to amending legislation. Furthermore the House accepted that judicial review could be sought as a faster and less expensive alternative to a reference to the ECJ.
R v Secretary of State for Transport ex parte Factortame [1991] was probably the most serious attack on parliamentary sovereignty. A Spanish fisherman claimed that the Merchant Shipping Act 1998 affected UK fisheries policy and was contrary to EC law. The Court of Appeal and House of Lords held tat no national court had the power to suspend the operation of an Act of Parliament. The ECJ disagreed. The House of Lords thereupon granted an order restraining the Secretary of State from enforcing the legislation. Since Factortame, UK courts will not apply an act if it conflicts with community law.
Has parliament sovereignty been curtailed by EU membership? In Macmahon v DES 1983 ECC Treaty on free movement workers was applied in preference to UK regulations, which prevented the claimant from obtaining an education grant.
Also, in Webb v EMO Air Cargo 1994 the claimant was dismissed because she was pregnant, the Sex Discrimination Act was interpreted so as to be consistent with the EU Directive on sex equality.
It was stated in Bossa v Nordstress Ltd 1998 that an Act of Parliament which is incompatible with any requirement of European law can and must be declared invalid and ineffective to the extent of that incompatibility.
The supremacy of EC law is enforced by the ECJ. If a provision of national law conflicts with a provision of EC law, then EC law will prevail. This was shown in Van Gend en Loos v The Netherlands 1963 “The community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields.”
The UK can withdraw from the EU. Not only can parliament legislate on any matter how it thinks fit, no parliament can bind its successor. In other words while the European Communities Act 1972 clearly implements all EU jurisprudence a future parliament can repeal the 1972 Act. Furthermore, the 1972 Act itself is not bound by its own provisions because of S.2 (4), “any enactment passed or to be passed shall be construed and have effect subject to the foregoing provisions of this section”.
B 1966, the UK had recognized the power of the European Court of Human Rights to hear complaints of the UK citizens and the authority of the European Court of Human Rights to adjudicate on such matters. The convention declares certain Human Rights, which are or should be protected by the state and also provides judicial procedures by which the alleged infringement of these rights may be examined at an international level.
By 1998, these conventions were incorporated into domestic court and took effect from 2000.
The HRA has been recognized as the first major step towards a British Bill of Rights and has been accorded an important element in the constitutional re-settlement of the different nations and regions of the UK, and the recognition of the people of the UK as citizens endowed with human rights.
Prior to the Human Rights Act 1998, the British legal order was one of Parliamentary Supremacy tempered by the courts evolving rules of interpretation that aided, to a degree, the protection of some basic freedoms. The parliament occupies a central place in the legal system. There were no legal limits on the authority of the parliament as they have the power to make constitutional changes by ordinary process of legislation. According to Dicey, “The principle of parliamentary sovereignty means that the parliament 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 as having a right to override or set aside the legislation of the parliament. This ensures that the courts will obey any new act of parliament as seen when faced with two conflicting acts of parliament of the same statute, the court applies the later act as no sovereign parliament is bound by its predecessors. By the doctrine of implied repeal, the later act repeals the earlier act to the extent that the later act is inconsistent with provisions in the earlier act.
As long as the UK remains a member of the EU, the community law will limit the parliaments authority and the court must disapply UK legislation if it conflicts with community law.
The place of the doctrine of parliament sovereignty in the law and the government of the UK has changed in recent years especially with the need for the government to accede to an international frontier in the growing world development. The advancing pace of the European Integration has made extensive inroads to Diceyan doctrine of legislative supremacy.
Although the Human Rights Act 1998 does not enable the courts to set aside an act of parliament but it authorizes the courts to scrutinize legislation and make sure that they are compliant with the convention rights and the evolution of devolution means that the Westminster parliament is not the only legislature in the UK.
Word Count 1224
The Bill of Rights1688
The Continental Shelf Act 1964
The War Crimes Act 1991
Cheney v Conn [1968] 1 All ER 779 782
Godden v Hales [1686] 89 ER 1050
Human Rights Act 1998
R v Secretary of State for Employment ex parte Equal Opportunities Commission 1992 IRLB 176
Employment Protection(consolidation) Act 1978
R v Secretary of state for Transport ex parte Factortame [1996] ALL ER (EC) 301
Merchant Shipping Act 1998
Macmahon v DES 1983
Webb v EMO Air Cargo [1994] 4 ALL ER 115
Sex Discriminations Act 1984
Ellen Street Estates Ltd v Minister of Health 1934 1 KB 590
Bossa v Nordstress Ltd [1998] ICR 694
Van Gend en Loos v The Netherlands [1963] E CR 1
European Communities Act 1972
Jeffery Jowell & Dawn Oliver, The Changing Constitution
AW Bradley The sovereignty of Parliament-Form or Substance?
David Bonner, Helen Fenwick and Sonia Harris-Short, Judicial Approaches to the Human Rights Act
AV Dicey, Law of the constitution 10th edn
Pollard, Parpworthand Hughes, Text with materials Constitutional and Administrative Law 3rd edn
Marston and Ward, Cases and Comentry on Constitutional and Administrative Law 4th edn
Neil Parpworth Constitutional and Administrative Law 3rd edn
