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Parliamentary Sovereignty and the UK Constitution
tagsparliamentary supremacy, parliamentary sovereignty, legislative supremacy
Parliamentary sovereignty is one of the corner stones of the UK constitution. It was conceived during the period of William and Mary who came to throne with a condition to give parliament supremacy and put the royal prerogative under parliament.
Parliamentary Sovereignty And A.V. Dicey
According to A.V. Dicey:
“ The principle of parliamentary sovereignty means neither more nor less than this: namely that parliament thus defined has, under the English constitution ,the right to make or un make any law whatever; and further, that no person or body is recognized by the law of England having a right to override or set aside the legislation of parliament……..”
In Dicey's view parliamentary sovereignty entails three principal aspects:
1. Parliament is the supreme law making body and may enact any laws on any subject matter.
2. No parliament may be bound a predecessor or bind a successor.
3. No person or body including a court of law may question the validity of law.
First of all, there is no limit on subject matter on which parliament may legislate. metaphorically it was said by Sir Ivor Jennings (1959) that parliament can legislate to ban smoking on the street of Paris, parliament can legally make a man into woman .Sir Leslie Stephens (1882) stated that parliament could legislate to have a blue eyed babies put to death.
These types of example illustrated the extent of the legislative power exercised by the UK. parliament. If we look through the history we will see that parliament has enacted the law to alter and its terms of office, to abolish and reconstitute it self as a different body, to change its own powers and to change the succession of throne.
The legislative power was even wider that it legislated with retrospective effect and with extra territorial effect.
In accordance with Dicey, another feature of the parliamentary sovereignty is that it may not be bound by its predecessors or binds its successors. The mechanism by which the judges of the U.K court give effect to that rule is popularly known as Doctrine of implied Repeal. According to this doctrine the judges must give effect to the latest expression of sovereign will and they are not free to apply the earlier statute. Vauxhall estates ltd v Liverpool Corporation and Ellen Street Estate Ltd v Minister of Health illustrated the doctrine in operation .Each case entailed similar facts. In the Vauxhall Estate case the divisional court held that the Housing Act 1925 impliedly repealed the conflicting provisions in the Acquisition of land (Assessment of compensation) act 1919.In the Ellen Street Estate case the court of Appeal again ruled that the 1919 act must give way to the 1925 legislation.
The other feature of the parliamentary sovereignty stated by A.V. Dicey that no one may question the validity of an act of parliament.
“True it is that what the parliament doth no authority on earth can undo.”
Lord Reid expressed in Pickin v British Railway Board :
“in earlier times many learned lawyers seem to have believed that an Act of parliament could be disregarded in so far as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of parliament was finally demonstrated by the revolution of 1688 any such idea has become obsolete.”
In R v Jordan and Tyndall it was held that the courts had no power to question the validity of an Act of Parliament.
European Communities Act 1972 And The Role Of European Court Of Justice In Protecting The Community Law
Those above were the situations before United Kingdom access to the European Union. The United Kingdom became the member of the European Communities in 1973.Since it is a dualist country the European Communities Act 1972 was specifically enacted by the parliament to make provisions for U.K. membership of the community. The acceptance of the community law by EC Act 1972 means that the laws of the community, the treaties laws enacted by the Commission, Council of Ministers and the European parliament together with the judicial decision of the European Court are binding on the United Kingdom.
Section 2 of the EC Act 1972 provides that community law shall have direct applicability in the United Kingdom:
“(1)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 recognized and available in law, and be enforced, allowed and followed accordingly ;and the expression ; “enforceable community right” and similar expression should be read as referring to one to which this sub section applies.”
Section 2(4) provides for the primacy of community law without expressly stating that the law of the community is supreme:
“The provision that may be made under section (2) includes subject to schedule 2 of the Act. Any such provision of (any such extent) as might be made by Act of parliament ,and any enactment passed or to be passed ,other than contained in this part of this Act ,shall be construed and have effect subject to the foregoing provisions of this section.”
Beside the above provisions we find Article 10 of the treaty as amended by the Treaty of Rome which imposes duty on all member states to comply with community law and not to impede the application of community law. Moreover, the ECJ' s approach towards the statutory provisions of the EC law made another strong base in support of EC law:
“By contrast with international treaties, the EC treaties have created its own legal system which………..became an integral part of the legal system of the member states and which their courts are bound to apply.”
In community law issue all member states compliance and disregard have been monitored by the European Court of justice. The ECJ not the U.K parliament has been considered as a mentor for the European community law. It has adopted several means by which to expand the applicability of the community law and to assert supremacy. One of the means that the ECJ adopted is popularly known as Doctrine of Direct Effect. It means that individual may invoke certain provisions as conferring direct rights which may be relied on in the national court. The ECJ articulated the theoretical basis for this principle in Van Gend en Loos v Nederlanse Tariefcommisse where the court observed that
“The community constitutes a new legal order……..the subject of which comprises not only member states but also their nationals. Independently of the legislation of member states community law therefore not only imposes obligations on individuals but is also intended to confer them right which become part of their legal heritage. these rights arise not only where expressly granted by the treaty but also upon reason of obligations which the treaty imposes in a clearly defined way upon individuals as well as upon member states and upon the institutions of the community.”
In this case the subject matter was Article 25 of the EC Treaty. The court finally found that the Article in question was clear and unconditional and therefore it required no legislative intervention by the member states and a member state had no power to subordinate it to its own law. The court also found that both the provisions in the Treaty and Regulations are capable of having direct effect if they satisfy the requirement of clarity and non conditionality.
Among the Articles which have been given direct effect by the ECJ are Article 12, 23, 25, Article 81, 82 and Article 141 EC.
Therefore if any of the above provisions is violated or any Act of parliament contravenes one of the above provisions then the individual can go to national courts for relief. Some times the UK national courts themselves ask for reference from the ECJ under Article 234 EC regarding the conflict between Treaty provisions and UK national law. This happened once in Henn and Derby v Director of public prosecution. In that case the accused were charged with conspiracy to import obscene materials contrary to the law of United Kingdom. The accused defined its criminal prosecution on the basis of Article 28 EC which prohibits quantitive restriction on import. The House of Lord referred the matter to the ECJ under Article 234EC asking the ECJ to interpret Article 28 in order to establish whether English law was bound by the restriction in Article 28 EC. The ECJ ruled that although English law infringed Article 28, they could take action under Article 30 which provides that restriction on imports other wise contrary to Article 28 are justified on the ground of public morality, public policy or public security.
Along with treaty provisions, the united kingdom is also bound by Article 249 EC to implement Regulations and Directives .Regulations leave no discretion to the member state rather confer rights and duties within the member states without further legislative participation. In Commission v United Kingdom (Re: tachno graph) the British government was held to have violated community law by not passing legislation making non compliance with a community regulation requiring the fitting of techno graphs a criminal offence. On the other hand Directives leave discretion to the member state regarding the method and form of implementing it within time limit. After expiry the time Vertical Direct Effect was held to be given to directives which have remained unimplemented after the period provided for the adoption of measure in to national law. In van Duyn v Home office the ECJ only allowed vertical direct effect for the case of un implemented directives and denied to give any Horizontal Direct Effect in Marshall v South Hampton and South West Hampshire Area health Authority (teaching)(no-1) case. In stead of giving horizontal direct effect the ECJ has developed the Principle of Indirect Effect which requires national court to interpret national law in the light of non –directly effective provision of directives. In this context the UK judiciary has experienced particular difficulties in accepting the principles and in Webb v Emo Cargo (UK) Ltd (No2) the House of Lord found it impossible to construe the domestic law with the term of the EC Directive in the same field but later had to change mind following a preliminary reference to ECJ.
The ECJ has also established the Principle of State Liability to the effect that member states are liable in damages to individuals for breach of community law that causes damage. The UK is not exception to this principle and has often been taken to the ECJ. In some preliminary references the ECJ has considered a mere infringement as a basis for state liability. In R v Ministry of Agriculture and Fisheries and Food exparte Hadly Lomas (Ireland) Ltd. the court declared that the UK's breach of Article 29 EC was not justifiable under Article 30 EC. But in R v Her Majesty's Treasury ex-parte British Tele Communications Plc. the court concluded that liability would not occur in case of breach on the basis of reasonable interpretation in good faith of UN clear directives.
Acceptance Of The Supremacy Of Community Law And Its Effect In UK
First time the English court found difficulty in accepting the doctrine of community law supremacy. in Bulmer (HP) Ltd v J Bollinger SA Lord Denning MR stated that the treaty had no more force than statute .He also suggested in Felixstowe Dock and Railway Company v British Transport and Dock Board that if an act was passed that conflicted with community law it would be the duty of the court to uphold the Act regardless of the EC Act 1972.Later the attitude was changed when the courts used section 2(4) as a rule of construction .The courts later concluded that the UK was obligated under the EC Act to interpret national law in accordance with community obligations. This approach was adopted by the court of Appeal in Macarthys Ltd. v Smith .Lord Denning MR acknowledged the impact of the community law and its superiority to domestic law by following ways:
“If on close investigation it should appear that our legislation is deficient or is inconsistent with community law by some oversight of our draftsman then it is our bounded duty to give priority to community law. such is the result of section 2(1) and (4) of the European Communities Act 1972.”
Lord Diplock also suggested in Garland v British Rail engineering that even where the words of the domestic law were incompatible with the community law in question they should be construed so as to comply with it.
In order to construe the national law the court may imply some appropriate words to comply with the obligations imposed on it by EC Act 1972.
In Lister v Forth Dry Dock & Engineering co. the court called such construction as purposive construction and Lord Oliver referred to the fact that greater flexibility available to the court in applying a purposive construction to legislation designed to give effect to the United kingdom's treaty obligation enables the court “where necessary” to supply by implication words appropriate to comply with those obligations.
But this purposive construction should not be applied to legislation which was not introduced to comply with obligation under the EEC treaty. In Duke v Reliance Systems Ltd. the House of Lords held that nothing in the European Communities Act 1972 requires or allows an English court to distort the meaning of a statute in order to conform with EEC law which was not directly applicable.
From the above discussion we can come to an inference that although the UK assumed its community obligation and sacrificed its one of the corner stones principle of the constitution by dint of enacting the EC Act 1972, this Act helps striking the balance between the sovereignty of parliament and supremacy of EC law by the following ways:
On the one hand, like any other Act of Parliament EC Act is not entrenched that means it is not immune from amendment or repeal.
On the other hand the provisions of the Act have been understood by the judiciary to the fact that as long as the Act remains in force judges should resolve conflicts between UK law and EC law by assuming in their interpretations that the UK parliament does not wish to contradict EC law.
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