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Is Parliament Truly Sovereign? Considering EU Legal Supremacy over National Law

By Sara Joy - Law Student @ Downing College, Cambridge


Parliamentary sovereignty is an integral part of the UK constitution. Essentially, it makes Parliament the supreme legal authority which can create or end any law. This prevents the absolute entrenchment of law so Parliament cannot pass legislation that future Parliaments cannot change. Additionally, this means that unlike in the USA, courts cannot strike down Acts of Parliament.

Following Wade’s conception of the doctrine of Parliamentary sovereignty, the courts are required to give effect to the most recent expression of Parliament’s will and Acts of Parliament cannot bind future Parliaments. As a result, this model endorses both express and implied repeal. Implied repeal is considered in Ellen Streets Estates Ltd v Minister of Health. In this case, an order was passed under the Housing Act 1930. This act was argued to be inconsistent with the Acquisition of Land Act 1919 and since the later act had not expressly repealed the 1919 Act, it should be considered invalid. Furthermore, the 1919 Act expressly stated that the provisions which are ‘inconsistent with this Act…shall cease to have or shall not have effect’. However, it was held that by Maugham LJ that effect must be given to the newest Act of Parliament and allowing Parliament to bind itself would reduce its sovereignty. The inconsistent provisions of the 1919 Act would have been impliedly repealed by the latest provisions of the 1930 Act. This reflects the idea of ‘continuing sovereignty’ where Parliament is omnipotent except it doesn’t have the power to bind future Parliaments as that would limit the future sovereignty of Parliament.

We can consider this conception in the context of the enforcement of EU legislation in the UK. Wade considered the concession of legislative authority to the EU in Factortame (No2) to be a ‘revolution’. When considered through the lens of Wade’s conception this concession can be labelled as a ‘revolution’ convincingly. However, an alternate conception of Parliamentary sovereignty is the ‘manner and form’ theory. This theory allows for contingent entrenchment whereby Parliament should be able to lay down binding conditions concerning how and in what form legislation is to be enacted. On this view, Allan argues that the ruling was not revolutionary and instead, it was