Parliamentary supremacy

Parliamentary supremacy is Parliament's right to make whatever laws it chooses. It is derived (according to Dicey, originator of the concept) from the popular election of MPs. It may be questioned therefore, whether Europe should usurp it.

However, the customary references to parliamentary supremacy are somewhat misleading since the only thing that reigns supreme is the statute - we have statutory supremacy - even post Pepper v. Hart, the debates in Parliament can only be used in certain limited circumstances and even then they are nothing more than aids that need not be used, albeit aids with a somewhat greater weight than usual.

Parliamentary supremacy essentially originates with the Bill of Rights 1689.

As to the insusceptibility (or otherwise) of parliamentary supremacy, the Court of Appeal in Blackburn v. Attorney General 1971, rejected the argument that to join the European Community would be an illegal surrender of sovereignty, saying that Parliament "can enact, amend and repeal any legislation it pleases."

However, many things act so as to make parliamentary supremacy illusory - international treaty obligations mean that certain legislation would never be passed. In addition, the European Convention on Human Rights and the Human Rights Act (with its provision for statements that legislation is incompatible with the Convention), although not obligating rectification of non-compliant legislation, effectively mean that parliamentary supremacy is largely symbolic. Even so, its importance is such that in the passage of the Human Rights Bill, opportunities to allow judges to strike down offending legislation were spurned.

Membership of the EU is a derogation from parliamentary sovereignty in practice, even if not in theory, since all of the EU's powers flow from Parliament's sovereignty by way of the original Act, and therefore Parliament retains ultimate sovereignty.

There is a limited retention of parliamentary sovereignty in many areas of European concern, since the UK has limited powers to determine penalties for breach of EU law, and since the option is often left open in directives not to implement parts of the directive.

An example of the seriousness of the battering that parliamentary sovereignty has taken was seen in the Factortame 1991 case, where the House of Lords suspended, in a serious derogation from the traditional doctrine of parliamentary supremacy, the Merchant Shipping Act 1988, while awaiting the European Court of Justice's judgment.

In R. v. Secretary of State for Employment, ex parte Equal Opportunities Commission, the House of Lords gave a declaration that the Employment Protection (Consolidation) Act 1978 did not comply with EU law, and stated that judicial review could be sought as a faster alternative to taking a case to the European Court of Justice, to rectify defects in legislation that followed European law.

European Law Generally

1. Under the European Communities Act, s. 2 all European regulations as well as the Treaty become part of law without further enactment.

For example, in Pickmans v. Freemans PLC 1988, the treaty overruled English law.

2. Whilst there is no doubt that if an inconsistency with EU law is accidental, then the EU law should have precedence, it seems that if the breach of EU legislation is intentional the UK courts it seems that the courts should follow the UK legislation, since the European Communities Act enjoys no special constitutional supremacy, and later statutes traditionally take precedence, but do so would necessitate the implicit repeal of at least part of the European Communities Act, and so the UK would have to leave the EU. To do so would require explicit orders from Parliament and would be improbable to say the least.

In Maccarthys Ltd. v. Smith 1979 Lord Denning said that "we are entitled to look to the treaty as an aid to construction, but not only as an aid but as an overriding force" unless "Parliament deliberately passes an Act with the intention of acting inconsistently with the Treaty", we shall follow it. This was the case where the Court of Appeal where EU law was applied over the provisions of the Equal Pay Act 1970.

3. EU law is binding "without further enactment" and has priority over "any enaction passed or to be passed

Recommendations and opinions "have no binding force" according to Article 189 of the Treaty, but in Grimaldi de Fonds v. Maladie Professionelles it was decided that there is a duty to take them into consideration when considering questions of European law.

EU concerns are, inter alia:

  • trade

  • employment

  • agriculture

  • fisheries

  • consumer protection

  • competition

  • banking

  • health and safety

  • welfare benefits

The EU is not concerned with

  • criminal law

  • contract law (except for consumer and employment law)

  • family law

  • education

  • health

Although delegated legislation, which implements many EU directives, is convenient, the European Communities Act, says that it may not:

  • impose or increase tax

  • be retrospective

  • confer powers of subdelegation of legislative authority

  • create criminal offences with a penalty exceeding 2 years and £1000.

Referral To The European Court Of Justice

The criteria on which the decision to refer will be made are:

  1. whether the delay caused by the referral cause injustice;

  2. whether the referral would overload the Court;

  3. bearing in mind that the Court cannot decide questions of fact (Denning said that the facts should be first ascertained (in Bulmer v. Bollinger 1974)), or the application of a point of law - the case should be decided but for the point of law first, and the result of the case should be dependant on the European law before referral is made.
    In Church of Scientology v. Customs and Excise, for example, the Court of Appeal elected not to refer, since it was first necessary to decide whether the 'Church' was a genuine non profit-making religion.

  4. bearing in mind that both parties should ideally agree to the referral;

  5. bearing in mind that any "court or tribunal" (art. 177(2) of the Treaty) may refer (for example, in R. v. Plymouth Justices ex parte Rogers 1982, the magistrates' court referred the case to the Court of Justice, and the prosecution sought judicial review. The Divisional Court allowed the referral but warned that lower courts must be careful in referral.
    In the European Court of Justice case of Rheinmühlen-Düsseldorf v. EVSt 1974, it was decided that "a rule of national law cannot deprive inferior courts of the right to refer to the European Court."

  6. Referral can be on the interpretation of Treaty provisions, or the interpretation and/or its validity (only the European Court of Justice can determine validity of European law, so there is an absolute duty of referral in such circumstances) of European law.

  7. There is no obligation to refer where the matter has been previously decided by the Court, but there remains discretion so to do (Da Costa v. Nederlandse Belastringadministratie 1963). It was said in Bulmer v. Bollinger (this is not binding, but it is generally followed) that a re-referral should only be made if there are new factors or if the previous decision was felt to be wrong.

  8. Acte clair - if the matter is clear there is no requirement to refer. (CILFIT v. Ministry of Health (affirming Bulmer v. Bollinger) if "the application is so obvious as to leave no doubt." )

  9. There is a duty to refer (subject to the aforementioned conditions and exceptions) in the final appelate court, but otherwise discretion as to referral exists.