Public Law Coursework

Lord Justice Laws’ judgement makes an important statement on the hierarchy of acts of parliament. He states, using the case of R v Secretary of State for the Home Department ex parte Simms:

“We should recognise a hierarchy of statues: as it were “ordinary” statutes and “constitutional” statutes.”

He goes on to argue that the difference in stature between these two types of act show that greater importance must be given to the European Communities Act 1972 and therefore the defence’s argument of implied repeal is an ungrounded one. Leading on from this point, Laws L.J. highlights another invalid point of the defence’s argument. It is found that in principle there is no inconsistency between an Act which confers a power to amend later legislation and the terms of any future legislation. Specifically, it was found that s 1 of the 1985 Act and s 2(2) of the 1972 Act and therefore the issue of implied repeal was a moot one.

The judgement in this case goes further than just denying the defence of implied repeal, it goes on to discuss the relationship between the UK and the European Community and its basis. Lord Bridge of Harwich speaking in R v Secretary of State for Transport, Ex parte Factortame Ltd makes an important point:

 “If the supremacy within the European Community of Community law over the national law of member states was not always inherent in the E.E.C. Treaty it was certainly well established in the jurisprudence of the European Court of Justice long before the United Kingdom joined the Community. Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary”

This is a point which Laws L.J. agrees with in his judgement and he finds that upon joining the EU we sacrificed some of our sovereignty in order to give power and effect to the EU.

Laws L.J. adds further to his statements on the relationship between the UK and the EU in the final part of the judgement. He argues that when considering the United Kingdom’ relationship with the EU there are four crucial propositions that are required. Firstly, his Lordship states that all the specific rights and obligations which EU law created are incorporated into our own national law and given supremacy over all domestic law until such time as the 1972 act is expressly repealed. This means that any law passed after the 1972 act came into force must be in accordance with or subordinate to EU Law. It was held in Van Duyn v Home Office that benefits conferred by European law on an individual must be protected by the national courts even if national law does not confer such benefits. This case illustrates that EU Law is supreme and incorporated into our own National Law. It also illustrates that EU directives with direct effect can have immediate impact on National Law.

The second proposition his lordship brings into his judgement is that the European Communities Act 1972 was a ‘Constitutional Statute’ as described earlier in this essay. This proposition is important as it shows that the EU Law is supreme and entrenched by this constitutional act. However, Parliament still retains the power to expressly repeal the Act if it so chooses and so the European Union’s power is contingent upon Parliaments supremacy. His lordship’s 3rd proposition stated that the European Communities Act cannot be repealed purely because of our own common law and not because of any European or International law. Therefore our relationship with the EU is self-binding, and its power rests on the power held by Parliament in so much as it is supreme for as long as the UK parliament wishes it to be so.

In the last of the four propositions, Laws L.J. takes into consideration the fact that our relationship with the EU and our obligations to it are based upon domestic legislative powers and not EU legal power. His lordship then goes on to make the point that if it were seen that an EU measure was fundamentally contrary to our constitution then the question would arise as to whether or not the general wording of the 1972 Act was strong enough to bind us to such a measure and override our own domestic law on the matter. He concludes that these four propositions show that the dual supremacy of Parliament and EU reside in a practical and working harmony rather than a conflict, as was argued by the defence.

After an analysis of Lord Justice Laws’ judgement in this case we can see that there have been a number of important constitutional matters discussed. His lordship’s detailed judgement dealt with the relationship between the UK and the EU and sought to show that the primacy that European legislation enjoyed within domestic law was contingent upon Parliaments desire to give it that status. His lordship also dealt with the issue of implied repeal and drew attention to the fact that common law has created a hierarchy of statutes and a class of “constitutional” acts which cannot be impliedly repealed. This judgement also sets out that both parliament and the European Union are supreme, in a manner which allows the co-existence of UK sovereignty and primacy of European Union legislation. These constitutional issues are of great significance to the argument over supremacy and the judgement in this case gives some very clear definition of matters of constitutional significance.

Those matters of constitutional significance already discussed are likely to be shown to have the impact on future cases. It forms a basis for all future cases relating to the relationship between the two legislative powers. The impact will primarily be felt in those cases which concern a) conflicts between EU law and domestic statute, b) the implied repeal of acts with constitutional effect and c) the implication of the UK’s dualist approach to EU law. It will also have some impact on cases which involve the issue of entrenched EU law as it was found convincingly in this judgement that certain EU legislation can become entrenched.

In conclusion, this case has an important impact on the issue of supremacy. The conclusion of Laws L.J.’s judgement is that Parliament remains sovereign as its sovereignty is a fundamental part of our constitution and no parliament can alienate its own sovereignty. Thus it is only possible for European Law to have a contingent supremacy based upon the power given to it by parliament, a power which can always be stripped away by the passing of an Act. He adds that cases like Factortame show that there is an impasse between the two legislative bodies and Laws L.J. states that in order to overcome this, what has in effect been created by the courts are two separate supremacies. Therefore we can see the importance of what this judgement means, no foreign power has the right to take away the supremacy of parliament, such is our constitution.

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