Ultimately, it can be seen that Parliamentary supremacy is a key and highly significant element of the British constitution. However, many critics have argued that this supremacy was jeopardised and has now been diminished upon the UK becoming a member of the EU. There are many truths that can be found in this statement as well as many misconceptions.
The EU is an international organisation consisting of twenty-seven member states. At first, the EU was governed by the Treaty of Rome 1957, but since the latest amendment—the Lisbon Treaty 2007—the EU is now a lot more simplified in terms of procedures and structure and has become one single entity. The EU today is governed by two treaties known as the TEU and TFEU which are also primary sources of EU legislation. The EU comprises of two doctrines: The doctrine of direct effect, which simply states that individuals can rely on rights and obligations in their national courts, and the doctrine of primacy of EU Law over national law. This doctrine purposes to ensure effectiveness and achievement of the aims of the Treaties, but specifically looks to ensure uniformity of the application of law in all the member states. This however, poses as a threat to the UK as ideally, Parliament ought to be the supreme law maker of the UK. This doctrine immediately conflicts with Parliamentary supremacy and has been demonstrated throughout multiple cases in the UK courts.
Although the Treaty of Rome does not directly specify supremacy, the EU Courts had already declared their supremacy long before the UK became a member state. It was implicated that Community Law overrides any national law that conflicted with it. This concept was first decreed in the case of Costa v ENEL where it was held that:
"The EEC Treaty has created its own legal system which…became an integral part of the legal systems of the Member States and which their courts are bound to apply."
This was further supported in the case of Simmenthal, which held that every national court at any level was obliged to give supremacy to Community law and was to apply it immediately in its entirety, regardless of whether it conflicted with any national law.
Finally, the case of Handelsgesellschaft declared that the law stemming from the Treaty cannot be overridden by any national law; once again, the importance of Parliamentary Supremacy is belittled by EU law.
Where an Act of Parliament is incompatible with any requirement of European law, it must be declared invalid and ineffective to the extent of that incompatibility. The case of Bossa v Nordstress and the well-known case of Factortame are explicit demonstrators of this. In the case of Factortame, the ECJ held that UK Merchant Shipping Act 1988 was not in compliance with EU law and therefore could not withstand in the courts’ decision; this was contrary to the decision of both the HOL and the CA. The case of Pickstone v Freeman held that where there is a conflict, EU law always rules and in the case of McCarthy v Smith, Lord Denning accepted this by stating:
"Community law is now part of our law: and, whenever there is any inconsistency, Community law has priority… It is part of our law which overrides any other part which is inconsistent with it."
Factortame can be seen as the most influential case on EU supremacy because since then, UK courts will not apply any Act that conflicts with EU law.
Nevertheless, it could be argued that Parliament knowingly ‘surrendered’ its’ sovereignty and readily submitted itself to the regulations of the EU upon making the European Communities Act 1972—this is an English Act of Parliament which states that the UK is subject to the law of the EU.
- S2(1) states the immediate legal effect of the Treaty in UK
- S2(4) states that English Acts must conform to EU law.
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S3 states that the CoJEU is above any court of the UK
The making of this legislation presents the idea that Parliament was wholly aware that joining the EU would diminish their supremacy to an extent, yet they still went ahead forth with the membership. The ECA in its entirety attempts to, and successfully contravenes Dicey’s theory on Parliamentary supremacy as:
- No longer can Parliament make extra-territorial laws
- The courts and other ‘bodies’ now have power to challenge an Act of Parliament if it does not coincide with EU law and,
- In effect, the successors of Parliament have been bound in regards to making laws how it wishes; this is because any future laws to be passed will be subject to the primacy of EU law.
However, if Parliament ever decided to repeal the ECA, it is possible and quite likely that they would have it put through a referendum, perhaps to secure public interest and public order.
In conclusion, there is indeed great truth in the statement that membership of the EU has curtailed the supremacy of Parliament; however, it is quite arguable that the power continues to remain in the hands of Parliament. Theoretically, the UK may withdraw from the EU at any given time. The EU merely has limited legislative competence which is extended to only certain aspects of UK law, making its primacy easily reversible. Even if there were to be an Act of Parliament stating that the UK may never withdraw from the EU, it would not pose as a threat to the UK because Parliament may swiftly repeal this law at any given time—this is the power upheld by the doctrine of Parliamentary supremacy which will continue to live on as long as the British constitution permits it.
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BIBLIOGRAPHY
Books
Barnet, H., Jago, R., Constitutional & Administrative Law, (Taylor & Francis, 2011)
Dicey, A.V., Introduction to the Study of the Law of the Constitution, (Elibron Classics, 2000)
Jennings, I., The Law and the Constitution (Hodder and Stoughton, London, 1959)
Journal Articles
Allan, TRS “The Limits of Parliamentary Sovereignty” (Public Law, 614 1985)
Jennings, I The Law and the Constitution (University of London Press, 1963)
Loveland, I., Parliamentary Sovereignty and the European Community: The Unfinished Revolution?, Parliamentary Affairs, (Oxford Journals, 2012, pp. 517-535)
Cases
Bossa v Nordstress Ltd [1998] ICR 694
Ellen Street Estates v Minister of Health [1934] KB 590
Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle fur Getreide und Futtermittel (11/70) [1970] ECR 1125
Jackson v AG [2005] UKHL 56, [2006] 1 AC 262
Madzimbamuto v Lardner-Burke[1969] 1 AC 645
Macarthys Ltd v Smith [1979] ICR 785
Pickin v British Railways Board [1974] AC 765
Pickstone v Freemans [1989] AC 66
R v Home Secretary, ex p Fire Brigades Union [1995] 2 AC 513
R v Jordan [1967] Crim LR 483
R v Secretary of State for Employment, ex p Equal Opportunities Commission [1995] 1 AC 1
R v Secretary of State for Transport, ex p Factortame (No.2) [1991] 1 AC 603
Simmenthal SpA v Commission of the European Communities (C92/78) [1979] ECR 777
Vauxhall Estates Ltd v Minister of Health [1932] 1 KB 733
Statutory Material
European Communities Act 1972
Merchant Shipping Act 1988
Acquisition of Land Act 1919
Housing (Acquisition of Land) Act 1925
Treaties
Treaty of Rome 1957
Lisbon Treaty 2007
Treaty on the European Union
Treaty on the Functioning of the European Union
Web Resources
EU Timeline, , 4/01/2012
The Relationship Between the EC and EU, 9/01/2012, 12/01/2012
Definition of Parliamentary Supremacy, , 3/01/2012
Parliamentary Supremacy and the Constitution, , 09/01/2012, 12/01/12
Dicey’s View on the Rule of Law, 4/01/2012
A ‘Sovereignty’ Clause for the UK, 3/01/2012
BBC News, March 2007, viewed on 20/11/2011,
The Open Parliament Licence, viewed on 23/12/2011,
Madzimbamuto v Lardner-Burke[1969] 1 AC 645;
A.V. Dicey, Introduction to the Study of the Law of the Constitution, 2000, EC
R v Home Secretary, ex p FBU[1995] 2 AC 513
Vauxhall Estates v Liverpool Corporation[1932] DC
Flaminio Costa v ENEL[1964] ECR 585 (6/64)
R v Secretary of State for Transport Ex p Factortame (No.2)[1991] HL
Formerly known as the ECJ
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