The Uk’s Doctrine of Parliamentary Sovereignty Is a Relic of the Past and Has No Place In a Modern European State. Discuss

Dicey’s doctrine consisted of three main parts. Firstly, he stated that no one could question the validity of an act of parliament. This theory received judicial confirmation by Lord Reid in Madzimbamuto v Larder –Burke (1969) 

“It is often said that it would be unconstitutional for the UK Parliament to do certain things…but that does not mean it is beyond the power of parliament to do such things. If Parliament chose to do any of them, the courts could not hold the Act of Parliament invalid.”

In Pickin v British Railways Board, 1974 the House of Lords went further by affirming that, not only must the courts obey any law made by Parliament, but that they could not even examine whether the legislation had been made in accordance with the correct parliamentary features.  If this is the case then parliament can make any laws it so wishes, no matter how unfair or impractical they may be. Sir Ivor Jennings’ example of this was that Parliament could make it an offence for Frenchmen to smoke on the streets of Paris. The fact that this would be impossible to enforce is irrelevant to the fact that a British Parliament could make that law if they wished. 

The next part of Dicey’s “Doctrine of Parliamentary Sovereignty” claimed that parliament could pass retrospective legislation. An example of this can be found in Burmah Oil Co.Ltd v Lord Advocate, 1965 where a judicial decision was reversed by the passing of the War Damages Act 1965 which retrospectively cancelled the Crown’s liability to pay compensation for war damage lawfully caused. This shows that Parliament can do things that other countries may regard as unconstitutional.

The final part of Dicey’s doctrine states that no parliament can bind its successors or be bound by its predecessors. Traditionally Parliament can repeal the legislation of a previous parliament, usually by expressing such a repeal in a later Act. If Parliament passes a new Act that is inconsistent with an earlier Act, this will be treated as an implied repeal by the courts as it is not required to attempt to reconcile the two: Ellen Street Estates v Minister of Health (1934); Vauxhall Estates Ltd v Liverpool Corporation (1932). The doctrine of implied repeal is, however, only an approach to the interpretation, it is not essential to parliamentary sovereignty.

The first signs that the ideals of British Parliamentary sovereignty maybe about to be challenged came during 1971, in the final stages of negotiations into Britain joining what was termed the “Common Market.” “Anti-marketeers,” claimed membership would involve an unacceptable loss of sovereignty. Such were the apprehensions, prior to Britain signing the European Communities Act 1972, that the Foreign and Commonwealth Office (FCO) produced a document entitled, “Sovereignty and the European Communities,” designed “to examine the implications of entry into the European Communities for British Sovereignty.” This report suggested that membership would involve a considerable loss of sovereignty. If these findings had been publicised, it is unlikely that any political party would have approved Britain’s entry to the EEC. In fact, this information was so sensitive it was only released recently under the thirty-year rule. The European Court of Justice had already shown that Community law was to prevail over incompatible national law long before Britain joined the EU  in Costa v ENEL (1964).

Despite this, Britain became a member of the EU, then the EC, with the European Communities Act 1972. The main aim of joining was to create a unified European state with political unity, economic unity, and free movement of people and goods. However, particular sections of the EC Act 1972 were to cause direct conflict with the issue of Britain’s Parliamentary sovereignty. Section 2(1) of the EC Act 1972 stated,

“All such rights, powers, liabilities, obligations…arising by or under the treaties are to be given legal effect…and shall be recognised and available in law and be enforced and followed accordingly.”

S.3 (1) strengthened s2 (1) of the EC Act 1972, by directing the courts to decide issues relating to Community law,

 “…in accordance with the principles laid down by, and any relevant decisions of, the European Court of Justice.”

This has had a major impact on the United Kingdom, as in effect it created two legal systems, British domestic laws, and EU Laws in the form of treaty articles and regulations. The question of which one takes precedence if a conflict arises between them was addressed in British Railways v Pickin (1974). This situation relates to any legislation passed since 1972 that is inconsistent with EC law as, according to s.2 (4) of the EC Act 1972,

 “[Any] legislation passed, or to be passed in the future, should be construed and have effect subject to the rule laid down in s2 (1), that is, that effect must be given to EC rights.”  

Obviously, this causes problems with the doctrine of implied repeal, as theoretically the EC Act can overrule any legislation in conflict with it that is created after it. Originally, the courts refused to interpret UK laws in this way, claiming as in Duke v GEC Reliance Ltd

 (1988)that this was not the intention of Parliament when they were passed. Later cases such as Webb v EMO Air Cargo (no 2) (1995) saw the courts giving effect to a 1976 directive on the subject, exactly as the European Court of Justice required. Lord Denning had problems in deciding where to draw the line with relation to this issue, as he tried to retain British rights of parliamentary sovereignty. In Bulmer v Bollinger (1974), Lord Denning stated that he viewed EC law as, “...an incoming tide that cannot be held back.”  Clearly, he could see the implications for Parliamentary sovereignty if he referred cases to the ECJ. However, in Felixstowe v BR Transport Docks (1976) he proposed that, once a bill had become a statute, the courts would have to abide by the statute without regard to the Treaty at all. That view was in direct contravention to the s.2 (1) of the Act.  

To avoid being in breach of the UK’s obligations under the EC Treaties, courts have taken the view that they should comply with the EC rules. This method of statutory interpretation, combined with the wording of s.2 (4) of the 1972 Act, has instructed the courts to ways of using UK legislation that include the EC law and ensure there is no discrepancy between them. Several cases have adopted this method of interpretation; Garland v British Rail Engineering (1983), Pickstone v Freemans PLC  (1989), and Lister v Forth Dry Dock (1990). In the latter two cases, the courts even implied additional words into a regulation to make sure that EC law applied. Lord Diplock allowed the court to follow this procedure in Garland v British Rail Engineering (1983) by suggesting that the court could

“ read in” to any statute the words “ except where EC law applies.” Lord Denning later adopted this view, as in McCarthy’s v Smith (1979) he stated that it would be the court’s duty to give effect to EC law. 

This created a situation were an individual from a member state can take a member state to court for failure to adhere to EU law; The case of R v Secretary of State for Transport, ex parte Factortame Ltd No 2 (1991) continues to rumble on in relation to this. Citizens from member states can also take each other to court if they fail to follow EU law; Von Colson v Land Nordrhein-Westfalen. (170/83) This doctrine was also used in Marleasing SA v La Commercial International de Alimentacion SA (1992). The Commission can take member states to court if they do not comply with the regulations; Commission v France (Case C-1/00): France was in breach of Community law by refusing to lift the ban on British beef after the BSE crisis. It can be seen from this that the Commission is the “guardian of the treaties,” and ensures that EU law is adhered to above all domestic law in any of the member states. 

Despite Lord   Denning’s concerns about European law being “an incoming tide” (Bulmer v Bollinger 1974) it is important to remember that all EC law only has any effect in the UK due to its incorporation via s2 of the EC Act 1972.Lord Denning made the point in McCarthy’s v Smith (1979) that if this Act was repealed then EC law would lose its force as far as the British judiciary were concerned. While this would clearly be a breach of the EC Treaty, Britain could withdraw in this way and re-establish Dicey’s style of Parliamentary Sovereignty. Although the possibility of this actually happening may seem remote, we have not become one of the “United States of Europe” yet, despite pressure from Europe, the development of the Central European Bank and creation of the  “Euro.” The Government has not even ruled out the possibility of severing our ties to Europe. One of the Bills it is currently debating is the EU (Implications of Withdrawal) Amendments Bill. This is a bill to “establish a committee of inquiry into the implications of withdrawal by the UK from the EU.” While the political and financial consequences to Britain if it that happened would be complex, it is worth remembering that as long as there is the possibility that Britain could do that, it does still ultimately have overall control.