Parliament may grant independence to dependent States, whether Dominions or Colonies, as with the Nigeria Independence Act – 1960 and the Zimbabwe Independence Act –1979. Furthermore, Parliament may legislate to limit its own powers in relation to dependent territories, as shown by the Colonial Laws Validity Act –1865 and the Statute of Westminster 1931.
The doctrine of Parliamentary sovereignty means that Parliament can legislate to nullify rulings of the courts, even where the effect of the rulings would be retrospective; War Damages Act – 1965 reversed the effect of Burmah Oil Co. v Lord Advocate [1965] retrospectively.
Parliament may expressly legislate for overseas territory, as in the Continental Shelf Act – 1964. Such statutes will normally be passed in order to give effect to obligations undertaken under an international treaty; The Hijacking Act –1971. The House of Lords Act – 1999 removed hereditary peers from the House of Lords and The Human Rights Act – 1998 incorporated the European Convention on Human Rights.
The most often quoted and best remembered examples of Parliament’s theoretically untrammeled legislative powers are those offered by Sir Ivor Jennings: Parliament can legislate to ban smoking on the streets of Parris; Parliament can legally make a man into woman; and Sir Leslie Stephens: Parliament could legislate to have a blue eyed baby put to death.
No parliament may be bound its predecessor or bind its successor. For a sovereign body to be subordinate to another body would be a logical contradiction. It follows, therefore, that each Parliament must enjoy the same unlimited power as any Parliament before it. The doctrine of implied repeal provides the mechanism by which the judge gives effect to the rule against Parliament being bound by previous Parliaments or being able to bind subsequent Parliaments, and thereby guarantees contemporary sovereignty.
Thus, Parliament may pass, perhaps through inadvertence, a statute, which while not expressly repealing an earlier Act, is inconsistent with it. When the judges are faced with two apparently conflicting statutes, the doctrine of implied repeal will come into play, the judges applying the latest statute in time and deeming the earlier provisions to be impliedly repealed; Vauxhall Estates Ltd. v Liverpool Corporation [1932]; Ellen Street Estates Ltd. v minister of Health [1934].
Parliament may, of course, repeal any previous law by declaring that law to be repealed. The position of the judiciary is then clear: they must give effect to the latest expression of sovereign will and judges are not free to apply the earlier statute.
The UK has become a member of the European Communities with effect from 1st January 1973. The Community Treaties and Community law were given legal effect by the European Communities Act (ECA) – 1972. The objective of the Community is to create ‘partnership’ of Member States. To achieve this is a degree of harmonization of individual states’ law is necessary.
Whilst the UK is not bound by international treaties the particular feature of the Community is that laws made by the Community organs are transferred into UK law by virtue of the EC Act and furthermore the UK must legislate in a way consistent with Community law and Community Treaties; Bulmer v Bollinger. Community law has become a source of law in UK.
s2(1) of ECA – 1972 provides that ‘rights, powers, liabilities, obligations and restrictions … and all such remedies and procedures from time to time provided for under the Treaties … are without further enactment to be given legal effect … in the UK …’. s2(4) provides that UK Acts of Parliament ‘shall be construed and have effect subject to directly applicable Community law’.
The approach of the ECJ, which under s3 of the Act is the ultimate authority on the interpretation of Community law, is to assert the primacy of that law; Costa v ENEL; The Simmenthal Case. The European Court of Justice (ECJ) adopts as its guiding principle the supremacy of the law of the Community. In the ECJ’s view, a new legal order has been founded, a sovereign legal order within its sphere of competence. The sovereignty of community law must, according to the ECJ, be respected by the Member States, because through accession to the European Community, Member States have ‘surrendered’ their sovereign power in relation to those matters now regulated by the Community and Union.
The approach of the UK courts has been to interpret both treaty provisions and directives; Van Duyn v Home Office, in a way consistent with treaty obligations. This was the case in Macarthys Ltd v Smith, which concerned the equal pay provisions under Art 199 of the Treaty of Rome. In that particular case there was a degree of interpretative latitude under The Equal Pay Act 1970 as amended by the Sex Discrimination Act – 1975, and Denning MR argued that the court could look to the treaty provisions as an aid to constructions, the assumption being that the UK Parliament would not intend to legislate in a way inconsistent with European law.
The case of ex parte Foctortame, further underlines the conflict. The Merchant Shipping Act 1988 contained provisions at variance with Community law. On a reference to the ECJ the court predictably ruled that measures of EC law rendered any conflicting national law inapplicable. The HL granted an injunction effectively suspending the provisions of the Act that were in conflict thus frustrating, albeit temporarily, the objectives of the statute. The developing jurisprudence of the ECJ can be seen in two cases: Marleasing and Francovich. In Marleasing the court held that national courts should interpret their existing national law taking account of a clearly worded directive, notwithstanding it had not been implemented. In Francovich an individual was given the right to sue the state for damages for the non-implementation of a directive which would, if implemented, have conferred a remedy.
It can therefore be seen that, in the context of our membership of the EU, the purist view of parliamentary sovereignty is no longer tenable. Forfeiture of sovereignty is limited and partial in the sense that in the UK constitution it is not possible to entrench legislation and the EC Act could be repealed. However, a ‘European constitutional order’ is emerging despite some political resistance and the present integration of the UK into the Community does mean a limited sovereignty in practical terms.
