To understand if Parliamentary sovereignty has or has not diminished by the joining of the European Union (EU) in 1973 we must first look at the traditional meaning of Parliamentary sovereignty.

They went further ‘By contrast with ordinary treaties, the E.E.C. Treaty has created its own legal system which on entry into force of the treaty becomes an integral part of the legal systems of the member states and which their courts are bound to apply.”

The court of justice also held ‘to have regard to rules or concepts of national law even constitutions would affect the uniformity of application across member states’

   From these cases we can establish that the ECJ wanted to make it firmly clear that member states will be losing some of their sovereignty and will be bound to follow EU Law.

However with the new sources of law coming from the EU if they were in conflict with Acts of Parliament then this could potentially make the statute invalid as it could be challenged with EU law being applied. And the traditional values of Parliamentary Sovereignty be ditched to make way for a universal system across member states.

   The rationale for this principle is ‘raison d’être’ of EU law is to create (within certain fields) a pan European system of regulation and body of rights something that would be unattainable If member states were simply to ‘opt out’ simply by adopting contrary domestic provisions.

   So to put this into context the EU and the European Court of Justice had to make EU law supreme in order for it to be effective and for member states to fully comply.

    The challenge which EU law created for Parliamentary Sovereignty in the United Kingdom was firstly the principle that courts cannot override and Act of Parliament and secondly the threat to the doctrine of implied repeal. The way in which Parliament negotiated this was creating the European Communities Act 1972 (EC Act), this Act incorporated EU law into the domestic law. The act has been defined as some academics as opaque and fails to confront squarely the problem of competing sovereignties. S2 (1) states that direct effect should be given to EU law with no need of incorporation by fresh Acts of Parliament.

   S2 (4) states ‘any enactment passed or to be passed other than one to be contained in this part of the Act shall be construed and have effect subject to the foregoing provisions of this section’

     S3 states that decisions by the Court of Justice will be treated as law in the UK.

    So with the European Communities Act it seems that Parliament were fettering some of their sovereignty to the EU, the government In 1971 when in the bill stages believed ‘there is no erosion of essential national sovereignty’ however the view was different among other backbench MP’s in the great debate felt that ‘we are abolishing Parliament at Westminster and transferring its powers to Brussels.

  Since the 1972 Act come into force, to some extent Dicey’s theory has been weakened and even impaired as EU law will now prevail over national law thanks to the EC Act 1972.

Since the UK’s entry into the EU, The question of the relationship between national and European law has regularly been considered by the courts in the case of McCarthy’s Ltd v Smith, Lord Denning was of the view that in interpreting a provision of the Equal Pay Act 1970 the court was bound to look at art 119 of the EC treaty (now art 157 of the TFEU) When interpreting the statute since joining the EU, the courts in Lord Dennings view ‘are entitled to look to the treaty as an aid to construction, but not only as an aid but as an overriding force, if on close investigation it should appear that our legislation Is deficient or inconsistent with community law by some oversight of our draftsmen then it is our bounden duty to give priority to Community law, such is the result of s 2 (1) and (4) of the European Communities Act 1972. 

  The view of Lord Denning here was clear that the courts would give effect to EU law when Parliament is inconsistent to their obligations as stated in the European Communities Act 1972; the ECJ confirmed to the British courts that art 119 was directly effective.

   The domestic courts also began to use the purposive approach when looking at statutes, the purposive approach is favoured by the EU, the purposive approach has been in some cases been replaced by the literal rule, and in the case of Garland v British Rail Engineering, the House of Lords held that the words in s 6 (4) of the Sex Discrimination Act 1975 should be construed in the light of art 119 of the EC treaty now art 157 of the TFEU. Lord Diplock observed that ‘it is a principle of construction of UK statutes, now too well established to call for citation of authority, that the words of a statute passed after the treaty has been signed and dealing with the subject matter of the international obligation of the UK, are to be construed if they are reasonably capable of bearing such a meaning, as intended to carry out that obligation and not to be inconsistent with it.’

   Lord Diplock reaffirmed that all aspects of EU law must be followed and new Acts created by Parliament since the signing of the treaty must be compatible with EU law, or the courts may have to take the purposive approach to make them compatible.

   The House of Lords also have adopted the purposive approach on more than one occasion, the case of Pickstone v Freeman is a good example in this case. Women were paid less than their male colleagues, they took the case to a tribunal where it was initially dismissed however on appeal their case was decided in their favour and when the employers went to the House of Lords they dismissed the appeal on the grounds of it being incompatible with EU law and the wording of the statute was changed in order for it to reach the same outcome as EU law. And the initial wording of the legislation made by Parliament it had to be looked in a different way to make it compatible with EU law.

  One of the most significant cases on Parliamentary sovereignty in recent years is the case of Factortame Spanish fishermen had found a loophole that if they register their boats in Britain that they could fish under the British fishing quota, however Parliament in order to protect British fishing interests created the Merchant Shipping Act 1998. Companies in the fishing industry were required to show predominate British ownership; the claimants and many companies from Spain were unable to meet this new criteria as their boats were maintained and owned in Spain, and they sought judicial review as they felt the Act was contrary to EU law. The case finally reached the House of Lords after various appeals by the factortame fishermen. The House of Lords held that under English law they do not have the jurisdiction to grant relief and disapply the act.  The matter was referred to the European Court of Justice, who advised the House of Lords that if all that prevented interim relief being granted was a national law, then that law should be set aside by the courts.

   After the advice given by the European Court of Justice to the House of Lords, the Lords disaplied the Act and applied for an injunction so the Act could cease. This was the first time an Act of Parliament had been disapplied by the courts,  the judges were silent on their decision but Lord Bridge commented that EU supremacy was ‘ well established before the United Kingdom joined the EU, thus whatever limitation of its sovereignty it accepted when it enacted the European Communities Act 1972 was entirely voluntary.

   The outcome of the Factortame case was considered a huge blow to Parliamentary Sovereignty, Academics described the outcome which traditionally meant Parliament cannot bind its successors, Sir William Wade commented that ‘         succeeded in binding the Parliament of 1988 and restricting its sovereignty, something which was meant to be constitutionally impossible’ and also held it to be ‘revolutionary’.

  Another case where the issue of Parliamentary sovereignty was in question was the case of Thoburn v Sunderland City Council it was held by Laws LJ that the European Communities Act 1972 is ‘a constitutional statute, which like the Bill of Rights 1689, the Human Rights Act 1998, the Scottish and Welsh Devolution Acts, cannot be impliedly repealed. If Parliament wishes to override its provisions clear unambiguous words must be used.’ In a case where the wording for weights and measures regulation was ambiguous, and an issue of proper interpretation of the appropriate EU law and Domestic law was required. And the case of Thoburn reaffirms Factortame principle of implied repeal won’t apply to EU law.

   In conclusion the effect on Parliamentary Sovereignty since the UK joined the EU, has been unprecedented as the traditional concept of Parliamentary Sovereignty has become limited to such an extent that the traditional definition by Dicey is almost extinct thanks to the joining of the EU, however it is crucial to understand that the United Kingdom will have been well aware before joining the EU, that EU law will take precedence as illustrated in the Costa case

   The outcome of Factortame which was a landmark case which showed that the doctrine of implied repeal does not apply to EU law, and also led to courts disapplying an Act of Parliament which took power away from Parliament whilst also reducing its sovereignty. And also succeeding in binding the Parliament of 1988 something which was meant to be constitutionally impossible. However it is arguable that the effect is somewhat limited that EU law is supreme as Parliament allows this through the 1972 European Communities Act. And the courts are simply heeding Parliaments intention as expressed in the legislation.

BIBLIOGRAPHY

Books

A Venn Dicey, An introduction to the law of the constitution (Macmillan 8ed 1996)

N Parpworth, Constitutional and Administrative Law, London, 6th Edition, 2010

P Leyland, G Anthony , Administrative Law, Oxford University Press, London 6th edition 2008

Articles

J Jaconelli - International and Comparative Law Quarterly, 1979 - Cambridge University Press

M Elliot ‘Parliamentary sovereignty under pressure’ 2008  OUP

Sir William Wade, Sovereignty: Revolution or Evolution? 112 L.Q Rev 568 – 75 (1996)

T Ginsburg, The decline and fall of Parliamentary Sovereignty, Cambridge University Press

Legislation

ART 157 of the TFEU

ART 119 of the TEU

Bill of Rights 1669

Equal Pay Act 1970

European Communities Act 1972

Human Rights Act 1998

Merchant Shipping Act 1998

Sex Discrimination Act 1975

Treaty of Rome 1957

Cases

Defrenne v Sabena (43/75) 1976

Flaminio Costa v ENEL [1964] ECR 585 (6/64)

Garland v British Rail Engineering (1983) 2AC751

Internationale Handelsgesellschaft Gmbh [1970] CMLR 515

McCarthy’s Ltd v Smith (1981) QB180

Madzimbamuto v Lardner-Burke [1969] 1 AC 645

NV Algemene Transporten Expeditie Onderneming van Gend en Loos v. Nederlandse Administratie der Belastingen,  [1963]

Pickstone v Freemans (1988) 3WLR 26

R v Secretary of State for Transport Ex parte Factortame (No 2) (1991) AC603 Lord Bridge

Thoburn v Sunderland City Council [2002] EWHC 195 par

Vauxhall Estates v Liverpool Corporation [1932] DC

Other Sources

European Union official website – Definition of Direct Effect

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