Assess the impact that Britain's union with Europe has had on the Doctrine of Parliamentary Sovereignty
Assess the impact that Britain's union with Europe has had on the Doctrine of Parliamentary Sovereignty
The United Kingdom became a member of the EC in 1972 when it enacted the European Communities Act (1972). This has has undermined English Domestic legislation and the Supremacy of the Doctrine of Parliamentary Sovereignty. In particular s.2(1) of the Act brings European law firmly within our domestic law and such law is to ' be enforced, allowed and followed accordingly'. s.2(4) of the Act required English Statute law ' to be construed accordingly'. This indeed contradicts our doctrine of Parliamentary sovereignty. In Bulmer v Bollinger (1974), Lord Denning talked of a new source to our law and taking a rather pragmatic approach said :
'The Treaty is like an incoming tide. It flows into the estuaries
and up the rivers. It cannot be held back.'
Prior to this, the U.K. had complete control over the laws made . The doctrine entails that Parliament has absolute control over the law of the land and therefore its people. The doctrine also established the fact that new statutes would prevail over statutes previously enacted.
According to jurist and Professor Albert Venn Dicey Parliamentary Sovereignty is:-
' The very keystone of our constitution '
8th Century English Jurist Sir William Blackstone said :-
'What Parliament doth, no authority on earth can undo.'
Parliamentary Sovereignty can be broken up into three important elements: firstly Parliament can make or unmake any law; secondly Parliament cannot bind its successors and lastly Courts cannot question an act of Parliament. Firstly in the light of the European Communities Act 1972 Parliament can still only do this if the legislation is not an EU regulation or directive and is only domestic legislation. Parliament cannot for instance repeal an Act that an EU directive had ordered the government to make as they did in the case of Commission of the EC v United Kingdom (1979) (Re Taco graphs) .Secondly the fact that Parliament cannot bind its successors is significant. This originally meant that a present, say Conservative government could not implement legislation that would come into force when a Labour government came into power. Now this refers to the EU in that the UK government cannot pass any legislation that would in future conflict with any proposed EU legislation. Lastly and perhaps most importantly according to the doctrine of Parliamentary Sovereignty, the UK courts are not competent to question an act of Parliament. Is that fact true today though ? According to recent and past cases it is not.
A very important piece of EU legislation is Article 177 as this saw the abdication of the role of the House of Lords as the highest court in England and wales. Basically, this article allows a domestic court to refer to the European Court of Justice for reference if they cannot distinguish a remedy to a case that involves UK law in the light of EU law. The case of Factortame illustrates this.
Regulations, Directives and Decisions are obligatory Acts of the European Union. Under Article 189(2) ' a Regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. ' These really diminish English law as they apply straight away to our domestic law. The 'general application' of a Regulation is indicative of its legislature and it is the main instrument for uniformity throughout the community. In Leonesio v Italian Ministry of Agriculture (1973) a regulation to encourage reduced dairy production stated that a cash premium should be payable to farmers who ...
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Regulations, Directives and Decisions are obligatory Acts of the European Union. Under Article 189(2) ' a Regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. ' These really diminish English law as they apply straight away to our domestic law. The 'general application' of a Regulation is indicative of its legislature and it is the main instrument for uniformity throughout the community. In Leonesio v Italian Ministry of Agriculture (1973) a regulation to encourage reduced dairy production stated that a cash premium should be payable to farmers who slaughtered cows and agreed not to produce milk for five years. Leonesio did this but was refused payment because the Italian constitution required legislation to authorize government expenditure. 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. These are not directly applicable as Regulations are. Usually the EU Council hands a directive down and leaves the member state to make domestic legislation in a given time limit. The case of Francovich v Italy (1993) further developed an individuals right by enabling an individual to sue a state for damages when the state had failed to provide rights required by a directive. The ECJ upheld a right to compensation providing there was an attribution of rights to individuals under the directive. This case had horizontal direct effect in that Francovich could not sue his employer for compensation but could sue the Italian Government for failing to implement the directive. In Defrenne v Sabena (No. 2) it was held that Treaty obligations could be conferred on individuals as well as Member States, so called horizontal direct effect.
Regulations are Directly applicable. When European legislation is deemed to be directly applicable it means that every member state must apply it and it will become law straight away. The ECJ have gone further in Leonesio (1973) when it said that not only is national implementing legislation unnecessary, it is illegal. The Community legal order differs from international law, in this respect, as it creates rights for citizens which are enforceable before national courts. This is Direct effect. It was held in Van Gend en Loos (1963) that Treaty provisions (which satisfy the criteria) have vertical direct effect, that is they impose obligations on national governments and create corresponding rights for citizens. Article 189 provides that Regulations are directly applicable, that is they apply in the Member States without the need for national implementing legislation. Regulations which satisfy the criteria also have direct effect. Regulations are capable of both horizontal and vertical direct effect. The EC Treaty is silent on the question of the direct effect of directives. The ECJ held that a provision of a directive which specified the commencement date of a Treaty provision had direct effect in the case of Franz Grad v Finanzamt (1970) and a substantive provision of a directive was held to have direct effect in Van Duyn v Home Office (1974).
In Marshall v Southampton and South West Hampshire Area Health Authority (1986) The ECJ held that whilst a Directive might be invoked against the state, even when it acted in a private capacity as an employer (the AHA was found to be an extension of the state) it could not be invoked directly against an 'individual'. The plaintiff was retired by the H.A. because she was 62 but wished to continue to 65. British law women to retire at 60 and men at 65. She argued that her retirement was contrary to a directive providing for equal treatment of men and women. The national court made a reference to the ECJ for guidance. This case underlined the fact that an individual can only enforce a directive against a state agency not another individual.
There are three main limitations on the doctrine of direct effect; firstly not all provisions satisfy the criteria; secondly, directives do not have direct effect until their time limit has expired; and thirdly, directives do not have horizontal direct effect.
The significance of membership of the EU to our constitution law may be gauged by its impact on the concept of Parliamentary Sovereignty. In her article 'The Undeniable Supremacy of EC Law' (1993) New Law Journal, Emma Chown notes that however reluctant some may be to acknowledge it, community law takes precedence over our domestic law. Ever 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 (1993), and the Factortame litigation.
Marleasing concerned the question of whether one private party could plead the provisions of a directive against another private party (horizontal effect) where the directive had not been implemented into national legislation. In this case the ECJ confirmed the doctrine of direct effect provided for an action against the defaulting member state but not against another private party. Using the Von Colson principle (national courts are required to interpret national law in the light of the wording and the purpose of the directive) the ECJ concluded that domestic law must be interpreted in conformity with the implemented directive. This means that national courts must apply a directive even if it has not been implemented into domestic law, therefore undermining parliamentary sovereignty.
The ECJ has always stated that in an event of a conflict between EU and domestic law then EU law prevails. The case of Van Gend En Loos (1963) illustrated this point. The Dutch court sought a preliminary reference to the ECJ and held that actions could only be brought against the government of a member state by another member state or by the commission. In Costa v ENEL (1964) Costa claimed that the nationalisation legislation of Italy was incompatible with various Treaty Articles. The Milanese magistrates sought guidance from the ECJ under Article 177. The ECJ stated that Community law binds both member states and 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 whereas the UK courts very much do not. The case above and Simmenthal (1978) prove this.
These cases, however, involved member states other than the UK with its constitution based on parliamentary sovereignty. Yet even in the early 1970s our judges were quick to recognise the legal impact of the European Communities Act 1972 on domestic issues with a European element. Lord Denning asserted this in Bulmer v Bollinger (1974). The early benevolent and pragmatic approach by judges was seen in Macarthys v Smith (1981) where Lord Denning drew a distinction between mere inconsistencies and deliberate derogation. Where the incompatibility is inadvertent , he suggested that English Courts should apply EC law, on the presumption that Parliament intended to fulfill its treaty obligations. On the other hand, where the incompatibility was deliberate, he was of the opinion that English law should prevail. In this case Lord Denning asserted that this new source:
' ... is now part of our law; and, whenever there is any inconsistency,
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 position was reaffirmed in the test case of Garland v BREL (1983) but it was not until the Factortame litigation that the true impact on parliamentary sovereignty became apparent.
The cases of R v Secretary of State For Transport Ex Parte Factortame (1989), (1990) & (1992) change Lord Denning's ideal. Here the UK courts applied for an Article 177 reference about whether they were to apply the Merchant Shipping Act 1988. As this normally takes 18 months, the UK applied for another ruling asking whether in the meantime they should still apply the Act as it conflicted with Articles 52 and 221 of the Treaty o Rome. The ECJ ordered the UK to temporarily suspend the 1988 Act, something the UK parliament had never done before. This therefore severely undermined the supremacy of the doctrine of parliamentary sovereignty. The then MR Bingham L.J. in the Court of Appeal said that 'a UK statute is no longer inviolable as it was' and that 'setting aside an Act of Parliament is a constitutional enormity '.
Difficulties stem from the Doctrine of Parliamentary Sovereignty which makes British judges reluctant to construe legislation contrary to its ordinary literal meaning. In Pickstone v Freeman's Plc. (1987) it was impossible to construe s.1(2)(c) of the Equal Pay Act 1970 against its literal meaning in order for it to conform with article 119.
In the case of R v Secretary of State For Employment Ex Parte Equal Opportunities Commission (1994) the House of Lords held that a declaration should be made against the provisions of the Employment Protection (Consolidation) Act 1978 where employees who work for less than 16 hours per week are subject to different conditions in respect to qualification for redundancy pay, from those which apply to employees that work for 16 hours per week or more. This was incompatible with Article 119 of the Equal Pay Directive. This case is another outstanding example of the supremacy of European law over domestic law. This is as well a direct attack on the legislation that derives from Parliament in this country and proves that our domestic legislation is still in conflict with European legislation.
Judges in the Court of Appeal has an opportunity to look at the effect of the Factortame litigation in R v HM Treasury Ex Parte British Telecom (1993). A distinction was clearly drawn between disapplying primary and secondary legislation by the granting of an interim injunction and the judges declared that they would be far more circumspect in relation to primary legislation. Nevertheless, Factortame and other decisions we have cited have led judges, such as Hoffman J in Stoke-on-Trent CC v B &Q (1991), to conclude that our Treaty obligations to the European Union are, 'the supreme law of this country, taking precedence over Acts of Parliament'. Parliamentary Sovereignty may be sustained by our undoubted (though largely theoretical) right to withdraw from the European Union.
