Parliamentary sovereignty is a key doctrine of the UK’s unwritten constitution. It is undermined by the supremacy of European Union Law. Discuss.

Introduction

Parliamentary sovereignty is the central tenet of the English legal system. The doctrine refers to the constitutional doctrine that Parliament is capable of making or unmaking any law, and that such law cannot be overridden or set aside by any one or any authority save by the law made by the Parliament itself. The traditional doctrine of parliamentary sovereignty is still relevant today, however, there is a definite change in its structuring due to the impact of the EU law. As the UK is a member of the European community, it is bound by the EU law, which includes judicial review powers of the EU judicial institutions such as Court of Justice and European Court of Human Rights. Due to the predominance of the EU law, the doctrine of parliamentary sovereignty has been watered down to some extent. Therefore, it can be said that the supremacy of the EU law undermines the doctrine of Parliamentary sovereignty. It is also relevant that the recent Brexit vote has implications for the traditional doctrine of parliamentary sovereignty. If Brexit is carried through, then British Parliament will regain its supremacy and will not be fettered by the EU law anymore.

Parliamentary sovereignty and Supremacy of EU law

Ever since the UK gained membership of the EU, the supremacy of its Parliament, which is the key tenet of the constitutional law, has been compromised due to the fact that the EU law gained an important and superior place as a source of law in the UK. It is important to understand the doctrine of parliamentary sovereignty in order to assess how the supremacy of the parliament has been compromised by the application of the EU law. The case of Costa v Enel,[1] was the first case in which the supremacy of the EU law was decisively laid down by the European Court of Justice, in which the court held that with respect to the interpretation of EU law, EU courts would remain the highest courts of appeal. Also, which respect to the relationship between the community law and national laws, the court said that by opting for the membership of the EU, the member states had transferred sovereign rights to the EU; and that the status of Community law could not be questioned by the member states.

There are three aspects of the traditional doctrine of parliamentary sovereignty. First aspect is that the doctrine gives the place of primary legislation to the Parliamentary law, which means that the statute of the Parliament is the supreme law of the land. Also important is that the Parliament can legislate on any matter and there are no restrictions on it with respect to what legislations can be made by it. In this first aspect, the supremacy of the EU law means that Parliamentary law is no longer the only supreme law; and where an EU law is made on the subject matter, the EU law will prevail. This is as per the European Communities Act 1972, under which Section 2(1) provides the principle of compatibility between primary law and EU law, which requires that the law made by the Parliament is compatible with the EU law. The 1972 Act established the principle of the ‘Directly effective EU law’ under section 2(4).[3] This means that the courts are under a statutory duty to interpret the law made by the British Parliament in context of the EU law. In other words, statutes made by the Parliament, both before or after the passage of the 1972 Act, should not contain any provisions that are contrary to the provisions of the EU law. The courts have to ensure that such contrary provisions if they exist, are pointed out. The House of Lords went to the extent of suspending the operation of primary legislation when it contrary to the EU law in the landmark Factortame case, showing how primacy of EU law was upheld by the highest judiciary in the UK.

The second aspect of doctrine of Parliamentary sovereignty is that previous law made by the parliament cannot bind the future parliament, or in other words, parliament cannot be bound by its predecessors, nor can it bind its successors. This aspect of the doctrine is not really impacted by the supremacy of the EU law because the European Communities Act 1972 can be expressly repealed by the future Parliament. In fact, if Brexit carries through, then there is a high probability of a repeal of the European Communities Act 1972 because the British Parliament may no longer want that its laws have to comply with the EU law.

With regard to the third aspect of the doctrine of parliamentary sovereignty, the ECHR is also relevant, which was passed by the Council of Europe. After years of lobbying, the ECHR came to be directly applicable in the UK after the enactment of the Human Rights Act 1998 (HRA 1998) by the British Parliament.[8] The ECHR allows individuals to directly file a case against the UK before the European Court of Human Rights (ECtHR). The courts in the UK are bound to follow the jurisprudence of the ECtHR.[9] The HRA 1998 is also similar to the European Communities Act 1972, in the context that British courts can declare incompatibility between Parliamentary law and the provisions of the ECHR under Section 4 of the HRA 1998. The application of the ECHR through HRA 1998 has two important implications in context of the doctrine of Parliamentary sovereignty. First under Section 6 of the HRA 1998, public authorities are to ensure that their actions must be in compliance with the ECHR provisions. Before the supremacy of EU law was imposed in the UK, the public authorities only looked towards the statutory law from which they derived their powers. The second implication is that in interpreting Parliamentary statutes that may involve or impact human rights issues, courts are required to interpret the provisions in the legislations in accordance with the ECHR and the HRA 1998. This is provided by Section 4 of the HRA 1998 and under this provision, the doctrine of Parliamentary supremacy is obviously impacted.

Despite the primacy of EU law being established early in the case of Costa v Enel, and also seen to be accepted by the British courts in cases like Factortame, it is also noteworthy that the courts in the UK have not always accepted a blanket supremacy of the EU law over the Parliamentary legislations. In some case, the British courts have actually tried to ensure that the dilution of the principle of parliamentary sovereignty is not too extreme due to the application of the EU law. For instance, in Thoburn v Sunderland City Council, the court emphasised that the fact of EU law supremacy over the Parliamentary law is a creation of the parliamentary statute (in the form of the European Communities Act 1972), which can be revoked by the Parliament at any time.[10] Then again, in In Manchester City Council v. Pinnock,[11] the Supreme Court has also gone on to hold that British courts are not bound to follow every principle laid down by the European Court of Human Rights and also said the same in R (HS2 Action Alliance Ltd) v Secretary of State for Transport.[12] These cases demonstrate that in case there is a conflict between EU law and Parliamentary law, the doctrine of parliamentary sovereignty will not always give way to the EU supremacy.

Conclusion

The principle of EU supremacy is applicable in the UK, diluting the centuries old doctrine of parliamentary sovereignty to some extent. However, the hold of the parliamentary sovereignty is constitutional in the UK and even if it is at times eclipsed by EU supremacy, this is a per the prerogative of the Parliament and can be revoked by the Parliament at any time. In case of Brexit, this may well happen. Legislations such as European Communities Act 1972 and the Human Rights Act 1998 may be repealed by the British Parliament and in that case the EU law will lose its supremacy.

Bibliography

• Broadbent G, Public Law Directions (Oxford: Oxford University Press 2009).
• Slapper G and Kelly D, The English Legal System (Oxon: Routledge 2009).
• Wilson S, Rutherford H, Storey T, Wortley N, English Legal System (Oxford: Oxford University Press 2016) 28.
• G Broadbent, Public Law Directions (Oxford: Oxford University Press 2009).
• R (Factortame Ltd) v Secretary of State for Transport, [1991] 1 All ER 70.
• Wilson v First County Trust Ltd (No 2), [2003] 3 WLR 568.
• G Slapper and D Kelly, The English Legal System (Oxon: Routledge 2009).
• A v Secretary of State, [2004] UKHL 56
• G Slapper and D Kelly, The English Legal System (Oxon: Routledge 2009) 25.
• S Wilson, H Rutherford, T Storey, N Wortley, English Legal System (Oxford: Oxford University Press 2016) 28.
• S Wilson, H Rutherford, T Storey, N Wortley, English Legal System (Oxford: Oxford University Press 2016) 28.