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Published: Fri, 02 Feb 2018
Parliamentary Sovereignty Part Of Uks Constitution
Critique The Impact Of The Principle Of Supremacy Of European Community Law On The Principle Of Parliamentary Sovereignty In The Constitution Of The United Kingdom.
Parliamentary sovereignty is a fundamental part of the UK’s constitution, it is where Parliament is the supreme legal authority, which has the power to create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass a law that a future Parliament cannot change. However the doctrine of parliamentary sovereignty has been altered and limited by the UK’s decision to become a member of the European Community in 1973 when the European Communities Act 1972 came into force.Parliament must now legislate consistently with European Community law. This clearly undermines the principle of sovereignty, as Parliament is no longer the supreme legal authority. The Oxford dictionary of law defines Community law as:
“The laws of the European Union (as opposed to the national laws of the member states). It consists of the treaties establishing the EU (together with subsequent amending treaties), Community legislation, and decisions of the European Court of Justice. Any provisions of the treaties or of Community legislation that is directly applicable or directly effective in a member state forms part of the law of that state and prevails over its national law in the event or any inconsistency between the two.”
From this definition it is clear that European Community law is supreme over domestic law even in events where there is a conflict between the two. The definition highlights European law prevailing national law even when there is inconsistency between the two, this goes directly against the principles of sovereignty as Parliament no longer is the supreme law making body and the certain provision of Community law can override its decisions and influence the law making process. However it is essential that European law remains supreme over national law so that there is uniformity throughout the Community to create a common market. If Member States of the European Union gave their own national law priority over European Community law it would weaken Community law and even threaten the existence of the Community. This argument can be supported by the European Court of Justice’s ruling in Hauer v Land Rhineland-Pfalz 1979 where it was ruled that the creation of a uniform common market would be undermined if Community law was secondary to national law “lead to inevitably to the destruction of the unity of the Common Market.”
The concept of ‘directly applicable’ community rules is recognised by The European Communities Act 1972. Section 2(1) of the Act states that:
“All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression “enforceable Community right” and similar expressions shall be read as referring to one to which this subsection applies.”
This in other words means that all directly applicable European law becomes part of national law, whether it has already been made or is to be made in the future. What is meant by directly applicable law is that it is a provision of European law that automatically becomes part of the law of the Member State without them having to enact any further legislation. Therefore ‘Any rights or obligations created by the treaty are to be given legal effect in England without more ado’.This goes against the principle of parliamentary sovereignty in the constitution of the United Kingdom as directly applicable European law becomes part of the UK’s national law without the need for Parliament to accept or reject the law. Questions can be raised as to what will happen if directly applicable Community law, for instance a regulation or a provision of a Treaty Article conflicts with domestic law, an Act of Parliament. S.2(1) clearly states that directly applicable law automatically become part of the law of the national law, therefore the Community law will prevail over the national law. So arguably Parliament in the UK is no longer the ultimate law making body as they must accept directly applicable Community legislation.
European Community law can come in a number of forms and depending on the type it determines what effect it has on the domestic laws of the Member States. There are primary sources of European law which include; The European Community Treaty, The European Coal and Steel Community Treat, The Eurotram Treaty, Single European Act, Treaty on European Union (the Maastricht Treaty), Treaty of Amsterdam and Treaty of Nice. There are also secondary sources of European law which include; Regulations, Directives, Decisions issued by the Commission. To determine which types of European legislation have supremacy over domestic law we must recognise that there is a difference between laws which are directly applicable and those that are directly effective. Directly applicable law as stated above are, the laws that become part of the Member State without the need for the Member State to enact further legislation. Whereas directly effective is defined as “A provision of European law is directly effective if (and only if) it creates rights upon which individuals may rely in their national courts and which are enforceable by those courts.” This in other words means that direct effect is concerned with the enforceability of directly applicable law in national courts by individuals. We must also understand that direct effect can be vertical or horizontal. Vertical direct effect is if the law can be imposed against a Member State in its own courts but on the other hand horizontal direct effect is if the law can be imposed against another individual in the courts of a Member State.
Certain provisions of Treaty Articles are generally directly applicable, even though it is up to the Court of Justice to decide. Therefore they require no further legislative action by the UK for the Treaty Articles to become part of UK law. The first case when the UK courts had to apply the EEC Treaty was in Schorsch Meier G.m.b.H v Hennin 1975, where it was held that any rule at common law which required English courts to give judgements only in sterling was incompatible with article 106 of that treaty. This decision was confirmed by s.4 of the Administration of Justice Ace 1977. Lord Denning also stated ‘Parliament has decreed that the treaty in henceforward to be part of our law. It is equal in force to any statute’. This again highlights the supremacy that European law has over national law and that parliamentary sovereignty has been limited. As stated above one of the key features of parliamentary sovereignty, is that Parliament is the supreme legislator. So if European law becomes part of national law even when Parliament is against the law, they no longer are the supreme law maker and no longer hold highest authority. So to this extent Parliament is no longer sovereign. A Treaty Article will have ‘vertical’ direct effect therefore it will create rights for individuals which are enforceable against the state, this is if the terms of the treaty article are ‘clear and precise’ and when implementing the article no further legislation was required.
“A regulation shall have general application. It shall be binding in its entirety and directly applicable in all member states.” Therefore by virtue of s.2(1) of the European Communities Act 1972 they require no further implementation by Member States as they are ‘directly applicable’. Regulations have both vertical and horizontal direct effect so they can be enforced against the State or individuals in the courts of the Member State. Regulations clearly illustrate the supremacy of European Community law over national law as regulations replace domestic laws with Community laws. Regulations are arguably the most important legal Acts of the Community as they influence domestic law the most. They take effect on the day stated within the regulation, if there isn’t a date stated it takes effect on the twentieth day following their publication in the official journal. Governing institutions and courts of Member States are bound by regulations and have to obey them as they obey domestic law. This clearly takes away sovereignty from Parliament as they are bound by regulations, which in other words means that they have to follow regulations whether they agree with them or not. Regulations highlight the supremacy that parts of Community law has over national law and that parliamentary sovereignty has been limited since the UK joined the European Community in 1973.
Another source of European Community law are directives. “A directive shall be binding, as to the result to be achieved upon each member state to which it is addressed but shall leave to the national authorities the choice of form and methods.” This in other words means that Directives inform the Member States about what needs to be done, however it gives them the freedom to decide what kind of domestic legislation needs to be enacted to implement the Directive. This again shows the supremacy of European Community law as the Member States have to introduce new domestic legislation or change existing laws to satisfy the Directive. Directives provide detail on a certain area which Member States have to introduce new legislation on, or change existing law, this allows them flexibility in the type of law they introduce to satisfy the Directive. This is essential as different Member States need to implement the directives differently so that their national culture, customs or even identity don’t get changed. As long as the objective of the Directive is met the European Community allows a Member State to implement it however they wish to. This means that Directives are not ‘directly applicable’ as they require member states to introduce legislation. Some may argue that this can be seen as the UK’s Parliament having authority to introduce legislation, however looking at the broader aspect they have to follow the objectives of the Directive. So Directives can be seen as being supreme even though that the Member State introduces the legislation. Examples of UK legislation arising from the implementation of Directives are the Equal Pay Act 1970, the Sex Discrimination Act 1975 and the Consumer Protection Act 1987. When implementing a Directive the UK may have to change existing laws to satisfy the objectives of the Directive. This clearly goes against the principle of sovereignty as a Directive may make Parliament change laws it created to bring domestic legislation in line with the objectives set by the directive. So ultimately Directives can be seen as a guideline which Parliament has to follow, this leads to the UK’s Parliament no longer being the supreme rule maker as it has to follow guidelines set by the European Community. If the UK decide not to implement a Directive they can be liable to compensate anyone who has suffered from the failure. This again shows that European Community law is supreme and that as a result parliamentary sovereignty has been limited.
Decisions issued by the European Commission are also a source of European law. Decisions “shall be binding in every respect for the addressees named therein’. So in other words decision issued by the commission must be followed by Member States, individuals, companies or institutions. Decisions are not directly applicable but have direct effect. Recommendations and opinions can in some ways be viewed as a source of European Community law. “Recommendations and opinions shall have binding force”. Therefore these forms of Community Law can be seen as not being supreme and not limiting parliamentary sovereignty in the UK as they do not have to be followed, and have no legal authority. But on the other hand it can be argued that if the UK was to breach an obligation set by the Community, and the Commission offers an opinion the UK Parliament would follow that opinion as it may be unwise not to. But ultimately recommendations and opinions do not have to be followed so they do no limit parliamentary sovereignty in the UK.
Whenever there is a disagreement between European law and the law of the Member States, European law prevails. This has been made clear by the European Court of Justice since the decision made in Van Gend en Loos 1963. The Court ruled ‘the Community constitutes a new legal order of International law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals.’ This in other words means that sovereignty in Member States has been limited by their voluntary decision to be part of the Community. The United Kingdom joined the Community ten years after the decision in Van Gend en Loos 1963, so clearly they knew that their sovereign rights will be limited once they join the Community. This decision was followed the following year in Costa v ENEL 1964. ‘By creating a Community of unlimited duration…the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves.’ The European Court of Justice identified two important observations regarding the relationship between European law and national law. Firstly that when the Member States joined the Community they transferred their sovereign rights to the Community and that it is a principle of the Treaty that Member States cannot question Community law, therefore they have to follow Community law and that Community law has priority even over any conflicting domestic law.This illustrates the supremacy that European Community law has over domestic legislation in Member States, and ‘that the Member States have definitively transferred sovereign rights to a Community created by them’ So ultimately when the UK decided to become part of the Community they knew that parliamentary sovereignty would be limited in their constitution as Parliament would no longer be allowed to introduce new legislation that goes against European Law. At first the UK courts gave priority to national law over European law as they viewed national law as supreme “It seems to me that once a Bill is passed by Parliament and becomes a statute that will dispose of all discussion about the Treaty. These courts will have to abide by the Statute without regard to the Treaty.”
One of the first major conflicts between UK law and the law of the European Community occurred in Macarthys v Smith 1979. In this case a conflict broke out between Article 141 of the EC Treaty and a section of the Equal Pay Act 1970. Section 2(1) and (4) of the European Communities Act 1972 direct the courts to interpret the domestic law in compliance with EC law, if necessary to override the domestic legislation. Two of the judges in Macarthys v Smith 1979 disagreed with the ‘construing’ route. When the case came before the European Court of Justice, confirming that there was a conflict between the Act and provisions of the Treaty, the Court ruled that the Treaty article should be directly applied.
The supremacy of Community law over national law was accepted after some time by the House of Lords in the Factortame case, where a conflict was created between certain provisions of the EC Treaty and the Merchant Shipping Act 1988. Parliament had enacted the Merchant Shipping Act 1988 which allowed the Secretary of State for Transport to make regulations, for permission to fish in United Kingdom territorial waters. For Ships to qualify they must be at least seventy five percent British owned. This went against the EC Treaty which prevented discrimination on grounds of nationality. Factortame ltd were a Spanish based fishing vessel owners therefore they did not qualify and were denied licences to fish in UK territorial water. Factortame ltd claimed that the Merchant Shipping Act 1988 breached certain provisions of the EC Treaty and bought a case forward to the English Courts. At first the Court of Appeal and the House of Lords held that they had no power to suspend the operation of the Merchant Shipping Act 1988. The House of Lords then asked the European Court of Justice for a ruling on the powers of ‘national courts to grant interim relief where Community law rights were at issue’. The European Court of Justice ruled in favour of Factortame leading to a suspension of the Merchant Shipping Act 1988. Again the European Court of Justice demonstrated that Community law is superior to national law. The Factortame 1990 case had a major effect on parliamentary sovereignty as the Merchant Shipping Act 1988 was held to be ineffective as it went directly against provisions of Community law in the EC Treaty. Clearly this illustrates the superiority the law of the Community has over national law and that the decision made in Factortame 1990 undermines the principle of parliamentary sovereignty as Parliament recognised and accepted that they do not have unlimited legislative power as they have to legislate accordingly with Community law.
“Any enactment passed or to be passed … shall be construed and have effect subject to the foregoing provisions of this section.” This once more highlights the supremacy held by Community law over national law. Any legislation passed or to be passed in the United Kingdom has to be applicable and made with European legislation in mind. Again this illustrates the limitation on sovereignty in the UK as European law may challenge the validity of national law. In a parliamentary sovereign State no authority or institution can challenge law made by Parliament therefore to this extent parliament no longer remains sovereign in the constitution of the United Kingdom.
The supremacy of European Community law can also be shown through the actions taken against Member States when they fail to comply with Community law such as treaties, regulations, directives and decisions. If the United Kingdom chose not to act accordingly to certain provision of Community law action can be brought against them.
“If the Commission considers that a member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, they latter may bring the matter before the Court of Justice.”
So in other words if the UK did not fulfil an obligation of a Treaty, and ignored the opinions of the Commission they can be brought before the European Court of Justice and face further sanctions or penalties. This again goes against the principle of sovereignty as parliament can be seen as no longer being the supreme legal authority.
Having analysed the supremacy of European Community law over the law of the United Kingdom, the doctrine of parliamentary sovereignty has without a doubt been limited. An example of this limitation can be that Parliament must now legislate accordingly and taking into account European legislation, therefore sovereignty has been limited. However it can be argued that Community law is not totally supreme over national law as Member States chose to join the Community and can ultimately remove themselves from following European Community law by withdrawing themselves from the European Community all together. This arguably shows that parliamentary sovereignty in the UK has not been limited as the British Government can withdraw the UK from the European Community at anytime, if they wish to. However it is very unlikely that the British Government would attempt to withdraw the UK from the European Union because of the major problems it would create in the constitution of the UK. If the UK were to withdraw from the European Union huge problems would be created in economic areas such as; the common market, environment, agriculture, competition, employment, free movement of goods. These are all found under the first pillar of the European Union. Also the UK would no longer have a common foreign and security policy with the rest of the member of the European Union. This can have major effects on the security and welfare of the UK. For these reasons it is very unlikely that UK would withdraw themselves from the Community. But the Government has that option to withdraw the UK from the European Union and such a step would be effective in English law. Withdrawing from the Community shows that in some sense that Member States are supreme as they can stop following Community law if they wish to.
In conclusion the supremacy held by European law has clearly undermined the principle of parliamentary sovereignty in the constitution of the United Kingdom. On becoming a member of the EU in 1973, British courts and Parliament are under an obligation to apply European Law in the United Kingdom, even if it means to replace domestic legislation which is incompatible with the European Community law. This clearly undermines the principle of sovereignty as Parliament no longer holds the power to legislate in whatever way it wishes to. Section 2(1) states that “All such rights, powers, liabilities, obligations and restriction from time to time created or arising by or under the Treaties…as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law.” This once more goes against the fundamental principle of parliamentary sovereignty in the constitution of the UK as Parliament no longer is supreme when legislating. Even though that the supremacy of Community law was highlighted clearly in earlier cases such as in Van Gend en Loos 1963 and Costa v ENEL 1964, it did not become clear to the UK Parliament that they must legislate accordingly with European law until the Factortame 1990 case where the European Court of Justice ruled that The Merchant Shipping Act 1988 went against certain provisions of Community law. As a result of this the House of Lords eventually had to suspend the Merchant Shipping Act 1988. Membership to the Community means that the UK must now accept directly applicable law and directly effective law, and must incorporate them into their constitution. This once more highlights the limitation on parliamentary sovereignty as a result of being a member of the European Community. Different sources of European law have different affects on the principle of parliamentary sovereignty. Treaty Articles are normally directly applicable therefore by section 2(1) of the European Communities Act 1972 they don’t require further legislative action by the UK for them to become law. Regulations are also directly applicable in all Member States therefore they become part of domestic law. Regulations clearly undermine parliamentary sovereignty because if a UK law is in conflict with a regulation of the Community the UK law needs to be changed. This shows that Parliament is no longer the highest legislator and law enforcer in the constitution of the United Kingdom. Some may argue that Directives do not limit parliamentary sovereignty as Parliament legislates, however it must be remembered that parliament must legislate meeting the objectives of the Directive, therefore they are not sovereign as they cannot legislate however they want to. But regulations limit parliamentary sovereignty more than Directives. Decisions are also binding on Member States therefore the UK have to follow the decisions so to this extent they no longer are sovereign. The sources of European Community law stated above clearly highlight the supremacy that European Community law has over UK law. If there is a conflict between UK law and the law of the Community, the Community law prevails this yet again illustrates they supremacy off Community law. This also illustrates that parliamentary sovereignty arguably no longer exists in the constitution of the United Kingdom.
However it can be argued on the other hand that UK parliament remains supreme and sovereign as the UK joined the Community on their own accord and can lawfully withdraw at any time. Having the power to withdraw from the Community clearly shows that Parliament remains sovereign and that they have ultimate authority. If the British Government chose to withdraw the UK from the Community they could legislate once more with ultimate authority, on any matter, in whichever way they wish to. Some lawyers think if parliament were to legislate against European law and if the Act in question expressly stated that its provisions should override European law then British courts would support the UK statute. However this is hard to prove as it requires the British Government to breach its Treaty obligations which is very unlikely to occur. Also it is very unlikely that the British Government would withdraw the UK from the European Union because of the economic and political effects it will have on the United Kingdom as a whole. The doctrine of parliamentary sovereignty has clearly been limited as a result of the UK’s membership to the European Community. Parliament can no longer be seen as being the supreme legal authority, which has the power to create or end any law whenever they wish to. Also laws have to be compatible with certain provisions of Community law, this clearly undermines sovereignty and highlight the supremacy held by Community law. Even if some argue that the UK Parliament is supreme as the UK can withdraw from the Community and stop following Community law, it must remembered that it is very unlikely that the British Government would remove the UK from the European Union. Therefore as long as the UK stays a member of the European Union they must surrender their sovereignty and accept that Community law is superior.
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