Dicey’s original assessment of the doctrine of parliamentary supremacy pre-Factortame was criticised largely by academics and was also put into effective practice within case law. One of the features of Parliamentary supremacy is that Parliament cannot bind its successors; this is held in place largely by the doctrine of implied repeal which states that, where an Act of Parliament conflicts with an earlier one, the later Act takes precedence. This can be seen to have taken place in the case of Ellen Street Estates. The judgment of this case can be clearly summarised in the words of Maugham LJ who stated that “The legislature cannot, according to our constitution bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject-matter there can be no implied repeal”; Scrutton also holds this view of a “constitutional position that Parliament can alter an Act previously passed”. It is clear from this judgment that the courts wish to uphold this feature of implied repeal as a part of Parliamentary Supremacy. It could be considered that the doctrine of implied appeal is a limit on what should be a complete supremacy and it in fact negates the fact that Parliament can pass any laws by stating that they cannot pass laws which cannot be repealed. Tomkins however states that this is an issue just relating to the scope of legislative supremacy, by allowing for implied repeal, it ensures that Parliamentary sovereignty is maintained even where the courts do not explicitly provide for the repeal of a certain Act. The case of Pickin v. British Railways Board is another which demonstrates in practice a feature of the traditional doctrine of Parliamentary supremacy. This case upheld the principle that it was not the job of the courts to investigate the validity of any Parliamentary Act. It was held that “the function of the court was to consider and apply the enactments of Parliament…it was not lawful to impugn the validity of a statute…”. It is believed that, should the courts take the position of assessing the quality and validity of legislation, an undesirable schism would be created between the legislative and judiciary parties. In keeping with Dicey’s view of supremacy Lord Simon held that “the courts in this country have no power to declare enacted law to be invalid.”
Bearing these traditional features of Parliamentary supremacy in mind, it can clearly be seen how the inclusion of international community law into the UK has caused such a significant disturbance to the doctrine. The introduction of the European Communities Act 1972 which allowed for European Law to be incorporated into the UK legal system certainly sparked a great deal of contention with regard to supremacy. The case of Factortame Ltd. (No. 2) is one which demonstrates the impact of the incorporation of this law into the UK law when there is a discrepancy between the two systems. Within this case the UK introduced the Merchant Shipping Act which prevented fishermen who had once had the right to apply for a British status to fish in British waters from continuing to do so. Under the new legislation it was held that a vessel had to have a ‘genuine and substantial’ connection with the UK in order to fish in British waters. One vessel, Factortame, contested the validity of this legislation on the grounds that it contravened EU law, specifically the right not to be discriminated against on the grounds of nationality and the right of individuals and companies to establish themselves in business anywhere in the EU. It was seen in this case that, by enacting the European Communities Act which stated that EU law must take precedence over national law in the event of discrepancy, Parliament had effectively undermined the rules of its own supremacy by binding future Parliaments to uphold the conditions of the EU Act – “the rules of national law which render the exercise of directly enforceable Community rights excessively difficult or virtually impossible must be overridden”. Following the Factortame case and the exposition of the supremacy of EU law Margaret Thatcher labeled the proceedings “a novel and dangerous invasion by a community institution of the sovereignty of the UK parliament”. The decision in Factortame can also be seen to have undermined another principle of the supremacy of parliament as laid down by Dicey. It is clear that there is no longer nobody who has the right to override or assess the Acts of Parliament, as the EU can when the two are in conflict. This view, as supported by Wade, certainly holds some worth. It is, prima facie, true that in disapplying the Merchant Act, the Parliament of 1972 had bound its successors and undermined Parliamentary sovereignty.
It could be judged that this case displays a clear loss of Parliamentary power in these respects however, it could also be argued that Parliamentary sovereignty continues to exist. Lord Steyn’s assertion that “Dicey’s view of the sovereignty of Parliament…can now be seen as out of place in the modern United Kingdom” certainly seems to be a valid point. Allan disagrees with Wade and asserts that “the existence of good legal reasons for the Factortame decisions shows that, far from any dramatic, let alone unauthorised, change in the “rule of recognition”, the House of Lords merely determined what the existing constitutional order required in novel circumstances.” The existing constitutional order today is made up with the EU as a functioning part and it would be futile to expect a doctrine as dated as Dicey’s, which pre-dates the existence of the international community, to continue to obstinately exist regardless of legal modernization. Whilst there seems to be no significant manner in which the two legal systems, both of which expect supremacy, can be effectively reconciled in the manner which Dicey laid out. There is no feasible manner in which national law can be held supreme whilst the UK is part of a body who formally state that heir laws must take precedent. In addition, the nature of parliamentary supremacy is undermined by even by the membership of a body as future parliaments are bound to some extent. The key point here is that, whilst reconciliation of the old way is unfeasible, there are solutions. Dicey’s view is dated and inconsiderate of modernization; if there was a distinct will to maintain key ideas of the supremacy of parliament but with the addition of clauses which allow for the EU additions, supremacy of parliament could continue in co-existence with supremacy of EU law where it is relevant. Aside from this, it must also be remembered that Parliament is not wholly bound by the decision to be incorporated into the European Committee. Parliament retains the right to repeal the European Communities Act and to remove itself from the EU if it wishes for the traditional nature of supremacy to continue.
De Witte’s view that “the idea that EC law can claim its supremacy within the national legal orders on the basis of its own authority seems implausible” seems to be a wholly traditionalist one and one which falls into line with Dicey original views on the supremacy of Parliament in the UK. Bogdanor is correct in holding that the decision in Factortame presents a clear departure from Dicey’s doctrine. The recent changes to the fundamental basis of the UK legal system have obviously called into question the distribution of power in the UK and the issue of where sovereignty does and should lie. Tomkins’ assertion that parliament remains sovereign in its ability to make or unmake any law, is still true. Whilst Dicey’s view has been largely eroded and there seems to be no means of reconciliation with the EC law which could reinstate it, this must be viewed as a positive thing. In a UK where modernisation and development for the good of the nation are of utmost importance, there is no place for blind traditionalism based on dated views. The nature of a doctrine such as Parliamentary supremacy should be open to fluidity and an ability to change as national trends to.
AV Dicey, An Introduction to the Study of the Law of the Constitution, 10th edn., (London Macmillan, 1959), 39 -40
Ellen Street Estates v. Minister for Health [1934] 1 KB 590 (CA)
Tomkins, Public Law (2003)
Pickin v. British Railways Board [1974] AC 765 (HL(E))
R v. Ex p Factortame Ltd. (No. 2) [1991] 1 AC 603 at 658 (HL(E))
Merchant Shipping Act 1988
Treaty of the Functioning of the European Union, 1957, article 6.
Treaty of the Functioning of the European Union, 1957, articles 43-48
Riddell, P. Parliament under Blair, Politicos Publishing, London 2000
Wade (1996) 112 LQR 568: “Sovereignty – revolution or evolution?”
R (Jackson) v Attorney General [2005] UKHL 56; [2006] 1 AC 262 (HL(E))
Allan (1997) 113 LQR 443: “Parliamentary Sovereignty: Law, Politics and Revolution”
Tomkins, Public Law (2003)