Both of the above two requirements for parliamentary sovereignty – to be supreme in law making and not to bind future parliaments – were questioned in the case of Factortame v Secretary of State (1989). In this case, the European Court of Justice ruled that the House of Lords must suspend the Merchant Shipping Act 1988 because it conflicted direct with provisions in the Treaty of Rome (1957).
The House of Lords obeyed the ruling and in doing so acknowledged the supremacy of the European Court of Justice over Parliament. This appears to be a breach of Parliamentary sovereignty. Furthermore, Lord Bridge suggested during the case that Parliament has, in the European Communities Act 1972, managed to bind its successors from repealing the Act.
There is also the case of Van Gend en Loos v Netherlands (1962) where the European Court of Justice prevented the government of the Netherlands from establishing new customs duties that the government had planned to introduce. The case of Van Gend en Loos established the supremacy of EU law over national law.
Any disputes over the meaning of EU law must be brought before the European Court of Justice, which exists to assist with the interpretation and application of EU law. It must be noted that the ECJ cannot decide the outcome of cases that are brought before it, it can only assist with the interpretation of the law.
The European Court of Justice also has powers to take action against member states whose laws are not compatible with EU legislation or who fail to realise EU Directives.
The European Court of Justice consists of 27 judges representing member states and is presided over by a President. Eight Advocates General are also present to advise the judges on particular cases in the ECJ. The Court may sit as a Grand Chamber (13 judges) in complex cases, or it can take place in chambers of three or five Judges. Decisions of the ECJ are of the Court rather than of individual judges, in contrast to the courts of the United Kingdom.
In brief, the forms of action of the European Court of Justice include actions for failure to fulfil obligations, actions for annulment of a measure adopted by an institution, actions for failure to act, application for compensation based on non contractual liability and appeals on points of law.
Returning to the debate in question – to what extent has EU membership affected parliamentary sovereignty? In theory, Parliament is able at any time to repeal the ECA 1972, meaning that it theoretically retains its sovereignty in the United Kingdom. In practice, however, this repeal of the ECA 1972 is extremely unlikely. So does membership of the EU detract from Parliamentary sovereignty? At this point, it would be helpful to make a distinction between legislative sovereignty and political sovereignty.
Politically, it would be very difficult indeed for the UK to extract itself from the European Union. Technically however, the UK parliament retains legislative sovereignty because it retains the legal right to withdraw from the European Union and not be subject to their authority. In other words, Parliament has retained legislative supremacy in joining the EU but has lost a measure of political ‘room for manoeuvre’.
I think that membership of the European Union is a very positive position for the UK parliament. As part of a local and global community, we have an obligation to take the opinion of other countries about our laws into consideration, since these laws can have a direct effect upon our neighbours. Although it may seem restrictive on our freedom as a country, membership of the European Union creates a legal obligation to consider the policies of neighbouring countries when creating and implementing UK laws.
Furthermore, the EU has introduced important laws that have benefited many in the United Kingdom, such as the protection of worker’s rights in the Working Time Directive whereby most employees should not have to work over 48 hours a week unless they choose to by written consent.
Nevertheless, many people (often calling themselves ‘eurosceptics’) resent being subject to the laws of ‘foreigners’ and complain that the power of Parliament to determine British law has been restricted. People such as these must remember that a large number of MEPs are in fact British and therefore it is not foreigners who choose EU legislation but democratically elected representatives of Britain. We as citizens of the United Kingdom therefore have an important say in EU law as well as our own Acts of Parliament, whether or not they are implemented directly through the House of Commons.
