How has the UKs doctrine and practice of parliamentary sovereignty

been affected by its membership in the European Union.

Student Name: Dwayne Haynes Part Time/ Saturday, Public Law

Introduction
According to AV Dicey (1885) in his works An Introduction to the Study of the Law of the
Constitution, he described parliamentary sovereignty (also known as the doctrine of
parliamentary supremacy) as the cornerstone of the British Constitution as it consists of the
following elements:
1) Parliament is the supreme law-making agency who can legislate on any matter of its
choosing;
2) No parliament can be bound by its successors or be bound by its predecessors, meaning
that Parliaments legislative competence is not limited in time and it can legislate
retroactively, changing the legal consequences of past actions and has the freedom to
enact further laws; and
3) The United Kingdom (UK) courts must enforce clear expression of Parliament's will,
meaning that once an Act of Parliament has received royal assent, no person(s) or body
can question the validity of the legislation.
By virtue of the Royal Prerogative, which empowers the government to enter into international
treaties that bind the state, the UK became a member of the European Union(EU) via the
European Community Act of 1972 (ECA). By this act, the United Kingdom consented to the
incorporation of the principles of direct effect and the principle of supremacy of Community /EU
law. The principle of direct effect in essence means that Community Law is capable of conferring
rights and duties directly on the individuals and national courts are obliged to interpret all
legislation in compliance with Community Law. Following the ruling of the European Court of
Justice (ECJ), in the case of Van Gend en Loos 1963, this principle came into being. The principle
of the supremacy of Community law was established in 1964 following the landmark decision of
the ECJ in Flaminio Costa v ENEL (1964) which enforces that Community law is superior to national
laws and Community Law takes precedence in the case of conflict with provisions of national law.
These principles bring with them a level of discomfort to some of the bastions of the legal
traditions of Great Britain. This essay engages in a discussion of the principles that have emerged

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 How has the UKs doctrine and practice of parliamentary sovereignty
been affected by its membership in the European Union.
from sections 2(1) and 2(4) of the ECA 1972 and how these provisions have impacted the
doctrine and practice of parliamentary sovereignty in the United Kingdom will be explored
through the lens of case law.

R v Secretary of State for Transport ex parte Factortame (No. 2) (1991)

A seminal case in the discussion of how the doctrine of parliamentary supremacy has been
affected by the EU is the case of R v Secretary of State for Transport ex parte Factortame (No. 2)
(1991). The Common Fisheries Policy (CFP) was implemented to regulate the fishing of Member
States by giving each state a quota. As a result, various Spanish vessels re-registered their vessels
under the jurisdiction of Britain and flew the British flag. This meant that the fish they caught
was attributed to the British quota and they could fish in British waters and sell the fish in Spain.
In response, the British government cited the provisions of the Merchant Shipping Act 1988
(MSA), which stated that a vessel could only be registered as British, if it had a genuine and
substantial connection to the UK. This connection included the condition that the management
and 75% of the shareholders of the shipping companies were British citizens, resident and
domiciled in the UK. By the provision of the MSA 1988 these persons who qualified under the
British quota were seen in the legislation as a qualified person. Factortame sought an injunction
to suspend the incompatible parts of the legislation (MSA 1988) until the ECJ ruled which placed
the House of Lords in a peculiar position as they had to await the judgement to decide if they
could apply the law of an Act of Parliament or Community Law. The ECJ held that an interim
injunction should be granted and the British government had to amend their legislation to come
into vogue with the prescribed provision of sections 2(4) of the ECA 1972. The case of R v
Secretary of State for Transport ex parte Factortame (No. 2) (1991) goes against the grain of the
notion of A V Diceys implied repeal and brings into question the notion that Parliament is
sovereign and has the right to make or unmake any law whatsoever.

European Union Act (EUA) 2011

In an effort to preserve its sovereignty the UK has opted out of provisions which gives the EU the
right to regulate matters of immigration and asylum under the Treaty of Lisbon 2009 and retains

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 How has the UKs doctrine and practice of parliamentary sovereignty
been affected by its membership in the European Union.
the power to opt in or out of polices concerning justice and home affairs. Moreover, it is argued
that the European Union Act (EUA) 2011 seeks to protect supremacy by creating referendum
locks. The locks provide that certain decisions can only be lawfully authorised by an Act of
Parliament which makes the effectiveness of the subsequent decision, contingent on whether it
has been approved by a majority of the electorate voting in a referendum. In addition, section 18
of the EUA 2011 was originally predicated to be a sovereignty clause and intended to reaffirm
the sovereign character of the legislative power of the UK Parliament. Legal scholars have argued
that the very nature of the EUA 2011 is in direct contravention of the A V Diecys notion that no
parliament can be bound by its successors or be bound by its predecessors and the act by its
very nature seeks to bind future parliaments and thereby curtail the acts of that which is
sovereign.

Macarthys Ltd. v. Smith 1979

Another case which highlights the argument of fleeting supremacy is the case of Macarthys Ltd.
v. Smith 1979. The learned Lord Denning in this case contend with the following matter involving
a possible conflict between Community Equal Pay Provisions of the European Community and
the subsequent UK Equal Pay Legislation. Lord Denning observed that as a result of sections 2(1)
and 2(4) of the ECA 1972, the UK courts were bound to apply the directly uphold Community
Law. Lord Denning conceded that if UK legislation is unintentionally deficient or inconsistent
with Community Law, UK courts must give effect to the latter since Community Law can
supplement a deficiency or inconsistency in U.K. Law. The Court of Appeal perceived a possible
conflict between the Domestic Legislation and the relevant Community Provisions, and
accordingly made a reference under Article 177 to the ECJ on the interpretation of the applicable
Community Law. In its preliminary ruling, the ECJ held that the Community Law provision
applied. His Lordship accepted that Community Law is part of U.K. Law, and that in the event of
any inconsistency, Community Law takes priority. This case challenged the forgoing notion
established by A.V Dicey in that an Act of Parliament which received royal assent, was
questioned by a competent source and found to be in-valid or void legislation. Notably the

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 How has the UKs doctrine and practice of parliamentary sovereignty
been affected by its membership in the European Union.
courts can only make such a pronouncement in this circumstance and cannot question the
validity of an Act of Parliament under any other circumstance.

R v A (No 2) [2001] UKHL 25 and The Human Rights Act of 1998 Chapter 42
The adoption of the Human Rights Act of 1998 (HRA) which placed new obligations on
parliament when creating legislation and redefined the role of the judiciary to interpret such
legislation, has also been an area of much criticism. The case of R v A (No 2) [2001] UKHL 25 is
instrumental in highlighting the ability of the court to interpret legislation in a consistent manner
to ensure, that they are in line with the principles of direct effect and the principle of supremacy
of EU Law. The defendant A was on trial for rape and his defence was that the complainant
either consented to the sexual intercourse or he believed that she had consented. He wished to
question her at a preparatory hearing regarding the fact that they had a previous sexual
relationship. However, he was prevented from doing so by the judge under section 41 of the
Youth Justice and Criminal Evidence Act 1999 (YJCE), which prevents a complainant's past sexual
history from being introduced as evidence. A argued before the House of Lords that section 41
of the YJCE was incompatible with Article 6 of the European Convention on Human Rights (1953)
(ECHR), right to a fair trial because it prevented him from introducing evidence that would aid his
defence. The House of Lords agreed and reinterpreted section 41 of the YJCE under section 3 of
the HRA 1998 to include a balancing test where the privacy of the complainant would be
weighed against the defendant's ability to have a fair trial under Article 6 (ECHR). If excluding the
evidence would impair the defendant's right to a fair trial, the evidence in question must be
allowed. In effect, the HRA technically facilitated a rewriting of the legislation devoid of
parliament.

Thoburn V Sunderland City Council (QB, 2001)

Perhaps the greatest proponent for the argument that EU law is superior to Common law, is the
ruling of Justice Laws LJ in the case of Thoburn V Sunderland City Council (QB, 2002). The facts of
the case are as follows, with effect from January 1, 2000, the Weights and Measures Act 1985, as
amended, made it illegal to use imperial units as primary units of weights for trade in goods. The

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 How has the UKs doctrine and practice of parliamentary sovereignty
been affected by its membership in the European Union.
applicants were prosecuted under s.11(2) & (3) of the Weights and Measures Act of 1994
despite their claim that the Weights and Measures Act 1985 (WMA) was inapplicable as it was
inconsistent with section 2(2) of the ECA 1972. In their point of view, the Weights and Measures
Act 1985 had impliedly repealed the ECA 1972. The WMA 1985 and the accompanying
Regulations of 1994, stated that the metric and imperial system of weight and measures should
be recognized as equal units which impliedly repealed the ECA 1972, which allows ministers to
create new secondary legislation regarding the metric system to comply with European Union
law (the so-called Henry VIII power). The court held that there was no inconstancy between the
ECA 1972 and the WMA 1985. Furthermore, there can be no inconsistency between a provision
of an Act granting a Henry VIII power and the terms of legislation adopted in application of that
power. The fact that a legislation granting Henry VIII power can only apply on legislation already
created at the moment of the entry into force of this legislation would be in conflict with
Parliament sovereignty. Additionally, the court stated that there is a hierarchy of acts of
Parliament and differentiated constitutional statutes and ordinary statutes. The Constitutional
statutes comprise the Magna Carta, the Bill of Rights 1689, the Acts of Union 1707, the Reform
Acts, the Human Rights Act 1998, the Scotland Act 1998, the Government of Wales Act 1998 and
the ECA 1972. Justice Laws LJ held that while ordinary statutes may be repealed by implication,
constitutional statutes can only be expressly repealed and ECA 1972falls within the hierarchy of
constitutional statutes. Therein, parliament must expressly repeal the ECA 1972 s is being
planned under the provisions of the forthcoming Great Repeal Bill to be piloted by the Rt
Honourable Prime Minister May.

The Parliamentary Context and Reality

From the forgoing information, it may seem that the traditional supremacy of parliament has
been undermined by the principles of direct effect and the principle of supremacy of Community
law. Moreover, some may argue that the traditional view of the AV Diceys perspectives on
parliamentary supremacy requires adjustments or modifications as it is somewhat unrealistic.
The Brexit Leave Campaign asserted that parliamentary sovereignty is diminishing and claimed
that 75%-85% of UK laws come from the EU/Brussels. However, the House of Commons Library

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 How has the UKs doctrine and practice of parliamentary sovereignty
been affected by its membership in the European Union.
has put this figure between 8-10%. In addition, despite the regulations and legislation imposed
upon Britain by its membership in the EU there are numerous institutions both within the House
of Commons and the House of Lords for scrutinizing EU legislations and procedures. The House
of Commons has five Select Committees, called European Standing Committees. These
committees review EU proposed agreements in a timely manner and if the committee is so
moved, it can introduce a bill on the subject matter to be debated. This process maintains
accountability as the Prime Minister and EU Council of Ministers are informed of Parliaments
position on individual legislation or the proposed amendments. In the House of Lords, scrutiny is
equally rigorous, with the Select Committee on the European Union which includes a series of
sub committees with specialized functions in the areas of trade and agriculture to name a few.
Together, these sub-committees provide reports annually which capture the intensions and
concerns of the UK Parliament. The collective scrutiny procedure of the two Houses, combined
with the Scrutiny Reserve Resolution that requires the Prime Minister to consult Parliamentary
committees regarding EU legislation, provides an important check on Community power.

Conclusion
The provisions of S (2)1 and 2(4) of the ECA 1972 has surely impacted the UK in both a positive
and negative manner depending on the perspective that one adopts., what remains factual is
that any authority given onto the EU can be un-done as the power granted to the EU is solely
one of a delegated nature and thus there is not a true loss of UK sovereignty. It is important to
note that above all parliament under the English constitution, has the right to make or unmake
any law and by the current decision to trigger Article 50 of the Treaty of Lisbon, it is evident that
parliament still remains supreme as it is only this body that can opt to reverse all actions and
policies adopted by the EU.

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