The most important practical application of the debate as to whether the UK Parliament may limit its own powers or have legal limitations imposed upon it by external sources of legal authority arises from the UK’s membership of the European Union. The UK became a member of the European Community with effect from 1 January 1972 by virtue of the Treaty of Accession 1972. Treaties and Community law capable of having direct effect in the UK were given domestic legal effect by the European Communities Act 1972 (ECA) which by incorporated all existing Community law into UK law.
Explanation Since the UK joined the European Economic Community (EEC), now the EU, it has progressively but effectively passed the power to create laws which are operative in this country to the wider European institutions. The UK is now subject to Community law, not just as a direct consequence of the various treaties of accession passed by the UK Parliament, but increasingly, it is subject to the secondary legislation generated by the various instructions of the EU.
European law takes three distinct forms: regulation, directives, and decisions. Regulations are immediately effective without the need of the UK Parliament to produce its own legislation. Directives, on the other hand, require specific legislation to implement their proposals, but the UK Parliament is under an obligation to enact such legislation as will give effect to the implementation of the directive. Decisions of the ECJ are binding throughout the Union and take precedence over any domestic law.
Under UK constitutional law, it is recognized that Parliament has the power to enact, revoke or alter such and any law it sees fit to deal with and no one Parliament can bind its successors. The extent of this sovereignty may be brought into question with respect to the EU for such time as the UK remains a member, but within the UK, Parliament’s power is absolute. This absolute power is a consequence of the historical struggle between Parliament and the Stuart monarchy in the 17th century.
Parliament arrogated to itself absolute law making power, a power not challenged by the courts, which were in turn granted an independent sphere of operation. It should be remembered, however, Seerden (2002: 202) points out that the Human Rights Act (HRA) 1998 has, for the first time given the courts the power to question, although not strike down, primary legislation as being incompatible with the rights protected under the European Convention on Human Rights (ECHR). It also allows the courts to declare secondary legislation to be invalid for the same reason.
The doctrine of parliamentary sovereignty has already been considered with respect to the relationship between Parliament and the courts, and similar issues arise with regard to the relationship between EC law and domestic legislation. It has already been seen that the doctrine of parliamentary sovereignty is one of the cornerstones of the UK constitution. One aspect of the doctrine is that, so long as the appropriate procedures are followed, Parliament is free to make such law as it determines.
The corollary of that is that no current Parliament can bind the discretion of a later Parliament to make law it wishes. The role of the court, as also has been seen, is merely to interpret the law made by Parliament. Each of these constitutional principles is revealed as problematic in relation to the UK’s membership of the EU and the relationship of domestic and EC law. Does the membership of the United Kingdom in the EU mark the end for English sovereignty?
Neil MacCormick has argued that European Community law should not be considered simply in terms of an Austinian theory of law and state grounded in the theory of sovereignty as a matter of habitual obedience to state sanctioned commands (MacCormick 1993). On one view it might be contended that because the power of the EU organs derives from the delegation of power by the UK Parliament, the UK Parliament is still the ultimate source of authority. As a matter of positive constitutional law, there appears to be nothing to stop the Parliament of the United Kingdom from altering or repealing the European Communities Act (MacCormick 1993: 80- 89).
On another view, the EU might be considered sovereign because it possesses coercive power over the UK: the UK Parliament is highly unlikely to revoke its membership of the EU unilaterally for the huge economic damage the UK would then suffer. So, whilst the Parliament is free to revisit the enabling act and to recover its full powers by amending the European Communities Act, practically this seems a near impossibility. Neither of these monocular views of sovereignty should be accepted.
As the European Court of Justice has continually held, the UE constitute a new legal order co-ordinate with that of the Member States. Different legal systems overlap and interact, without requiring subordination or hierarchical inferiority. A single source of sovereignty is an unnecessary if not unreal legal concept in the context of this type of legal pluralism. Potentially incompatible rules exist for recognizing the ultimate source of legal authority if, example, a Member State jurisdiction disagree with the ECJ, Competing claims for supremacy (notably in German Constitutional Court jurisprudence).
The legal doctrine of sovereignty has been modified by British membership of the European Union and the concomitant importation into the UK hierarchy of norms of the doctrines of primacy and direct effect of Community law that have been developed by the European Court of Justice (Weathelrill 2007: 669). Here clearly the influence of Parliament and of political parties in the UK is reduced. On the face of it, much European legislation, though it from part of the law of the UK is foreign to the UK and imposed externally.
The UK judiciary has shown considerable political adeptness in dealing with this development. This is well illustrated in three cases: first, in the dicta of Lord Bridge in the Factor tame case in which the disapplication of a UK Act was justified on the assertion that Parliament knew full well when it passed the European Communities Act 1972 that this would mean that the British courts would have to display incompatible legislation. In other words, this was part of the deal done by the UK and the EC and surrender of sovereignty was conscious and voluntary and not imposed unilaterally by the EC (Nicol 2001).
Secondly, in the approach of Laws LJ in the Hepburn case, in which he rejected the argument advanced by counsel for the respondent local authority that the court should give primacy to EU law because this was what the European Court of Justice’s case law required. Law LJ preferred to base the court’s application of European legislation on the common law and what he identified as a newly developing doctrine, that there is a distinction between constitutional statutes of which the European Communities Act 1972 was one and ordinary statutes, the former category not being subject to the doctrine of implied repeal.
It is probably less unpalatable to those who object to the primacy of European law and are about the democratic deficit in Europe and a loss of parliamentary sovereignty, that changes in the doctrine of parliamentary sovereignty should be home grown, rather than imposed from outside. Thirdly, in Jackson v. Attorney General some members of the Appellate Committee of the House of Lords indicated, obiter, that they might revisit the doctrine of legislative supremacy: if Parliament were to pass an Act that was contrary to principles of constitutionalism or the rule of law the courts might not give effect to the measure.
Evaluation Before the UK joined the EU, its law was just as foreign as law made under any other jurisdiction. On joining the EU, however, the UK and its citizens accepted, and became subject to, EC law. This subjection to European law remains the case even where the parties to any transaction are themselves both UK subjects. In other words, in areas where it is applicable, European law supersedes any existing UK law to the contrary.
The European Communities Act (ECA) 1972 gave legal effect to the UK’s membership of the EEC (Hanson 2003: 132), and its subjection to all existing and future Community law which provides: 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 UK shall be recognized and available in law, and be enforced, allowed and followed accordingly.
The ECA is constitutional statute and cannot be impliedly repealed, but that truth derives not from EU law but from the common law. In summary, the appropriate analysis of the relationship between EC and domestic law required regard to four propositions: first, each specific right and obligation provided under EC law was, by virtue of the 1972 Act, incorporated into domestic law and took precedence. Anything within domestic law which was inconsistent with EC law was either abrogated or had to be modified so as to avoid inconsistency.
Second, the common law recognized a category of constitutional statutes. Third, the 1972 Act was a constitutional statute which could not be impliedly repealed. Fourth, the fundamental legal basis of the UK’s relationship with the EU rested with domestic rather than European legal powers. Thus, does Laws LJ maintain balance between the supremacy of EU law in matters of substantive law, and the supremacy of the UK Parliament in establishing the legal framework within which EU law operates?
Conclusion The correct analysis of that relationship involves and requires these following four propositions. First, all the specific rights and obligations which EU law creates are by the ECA incorporated into domestic law and rank supreme: that is, anything in substantive law inconsistent with any of these rights and obligations is abrogated or must be modified to avoid the inconsistency.
This is true even where the inconsistent municipal provision is contained in primary legislation. Second, The ECA is a constitutional statute: that is, it cannot be impliedly repealed. Third, the truth of (2) is derived, not from EU law, but purely from the law of England: the common law recognizes a category of constitutional statutes. Lastly, the fundamental legal basis of the United Kingdom relationship with the EU rests with the domestic, not the European, legal powers.
In the event, which no doubt would never happen in the real world, that a European measure was seen to be repugnant to a fundamental or constitutional right guaranteed by the law of England, a question would arise whether the general words of the ECA were sufficient to incorporate the measure and give overriding effect in domestic law. But that is very far from this case. The UK Act of Parliament providing for membership of the European Communities, the European Communities Act 1972 recognized the primacy of EC law, which at that time had been fully established and recognized. The Act did its best to provide for it.