"The classical principle of parliamentary sovereignty has been radically altered as a result of the European Communities Act 1972 and the Human Rights Act 1998." DISCUSS

The ECJ would say ‘yes’ and have heavily emphasised the supremacy of EU law to all member states, that by joining the EU, and as a term of it, they transferred legislative supremacy to the Community; on matters within the capability of the Community’s institutions.  In Internationale Handelsgesellschaft mbH v Einfuhr-und Vorrattstelle fửr Getreide, the ECJ restated the principle of Community law supremacy when it was said that “the law stemming from the Treaty…cannot by its nature be overridden by rules of national law”, and again in Simmenthal SpA v Italian Minister for Finance affirming that “every national court must…apply Community in its entirety” when in conflict with the Community rule.  

These principles have been accepted by the courts and one of the leading cases is the Factortame. The legal question in this case was whether the English courts should suspend the enforcement of the Merchant Shipping Act 1988 - which was designed to protect British fishermen - because it contravened the Treaty of Rome 1957. The House of Lords initially held that the Merchant Shipping Act 1988 applied over any ruling of the ECJ which stated that the statute violated Community law. The European Court of Justice held that the courts in the Britain must set aside national legislation which inhibits the rights presented by EU law. Consequently, the House of Lords granted the application for interim order to stop enforcement of the Merchant Shipping Act 1988.  From such rulings, it becomes clear in relation to directly effective Community law, Parliament is no longer sovereign. Membership to the EU has limited national sovereign rights, and has resulted in a transfer of powers to the Community.

It is argued that, in theory, absolute sovereignty is actually retained. The argument proposes that the effects of Community law on the domestic system derives from Parliament and that the institutions of the Community have only been given power to legislate in strictly limited areas. The last, argument states that the European Communities Act 1972 can be repealed or amended at any time, if Parliament wishes to regain absolute legislative supremacy.

The Human Rights Act 1998 exercises a magnetic force over the entire political and legal system, and is an Act of fundamental constitutional importance. When the Act came into force in 2000, the Human Rights Act (HRA) allowed UK citizens – for the first time – to rely on statute resembling a Bill of Rights, to protect their essential human rights and freedoms. Prior to 1998, the British constitution contained no statement on basic human rights similar to those found in the constitutional provisions of other liberal democracies. Individuals are now provided with a charter of positive human rights and enjoy direct legal protection in the UK.

The Act is a legislative instrument of great significance, and has been described as the most important domestic legal development for a generation. But how does this Act affect parliamentary sovereignty? The s 3 of the Act creates a general statutory requirement that all legislation (past or future), be read and given effect in a way that is compatible with the Convention.

Before the passing of the Act, function of the courts, in relation to Acts of Parliament, was limited to the interpretation and application of that which was placed before them. This has now been enhanced, and the role of the judiciary is to act as guardian to individual human rights. The Act has given the judges a more firm legal basis on which to administer the correct balancing exercise of power between the rights of the individual, and the state.

The Lord Irvine of Lairg during Parliament debate ensures that the Act retains the classical principle of parliamentary sovereignty, while maximising the protection to individuals. He goes on to say that s 3 (2) guarantees that the “courts are not empowered to strike down Acts of Parliament which they find to be incompatible with the Convention rights…It is then for the government and Parliament to consider what action should be taken”. This as a result retains the traditions of parliamentary supremacy.

The classical principle of parliamentary supremacy has been modified as a result of the European Communities Act 1972. It has not been “radically altered” as the UK Parliament still maintains the ability to freely enact any legislation it likes which is outside the context of incompatibility with Community law. Lord Bridge’s emphasise in the Factortame case that Parliament voluntarily accepted a limit on its legislative powers by entering into the 1972 Act, perhaps show the courts belief that that they may; at anytime, withdraw that acceptance. But the view of others is that “Britain is like a man in a cage with the key in his hand. He can free himself any time he wants, but so long as he remains in the cage, he has no freedom. It's time to turn the lock”.With regards to the Human Rights Act 1998, it is admitted that the courts may now rule that a legislative provision is incompatible with the rights protected by the Convention, yet the principle of parliamentary sovereignty prevents them from holding that provision invalid. This would mean that the classical principle of supremacy is not dramatically altered and the impact of the Act has not been as enormous as it was expected. It represents a constitutional shift to a rights based system of law.

To conclude, the notion of parliamentary sovereignty still remains. It has been altered and adjusted to fit with the need to expand the economic and political benefits of joining the European Union, and the social requirements of fundamental human rights, freedom and protection.

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