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This act was argued to be inconsistent with the Acquisition of Land Act 1919 and since the later act had not expressly repealed the 1919 Act, it should be considered invalid.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 The inconsistent provisions of the 1919 Act would have been impliedly repealed by the latest provisions of the 1930 Act.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 ‘evolutionary’ because although their constitutional limits have been altered to allow future Parliament’s to be bound in this way, preventing implied repeal of inconsistent provisions of the European Communities Act 1972 by more recent legislation. This change is enabled by the fact the UK has an uncodified constitution and so generally is able to provide more flexibility in its constitutional arrangements.


However, Parliament’s legal powers have not changed because it still has the power to repeal legislation enacted by previous Parliaments and so can, in theory, repeal the 1972 European Communities Act. This view appears to be supported by Lord Bridge’s judgment in Factortame (No2) where he states that “whatever limitation of its sovereignty Parliament accepted when it enacted the ECA 1972 was entirely voluntary”. He states this is because “if the supremacy within the EC of community law over national law of Member States was not always inherent in the EEC treaty, it was certainly well established in the jurisprudence of the ECJ”. This suggests that on the ‘manner and form’ theory, this granting of supremacy through the European Communities Act 1972 is simply a matter of contingent entrenchment which is permitted in this theory. Which is exactly what Parliament did after the Brexit referendum.


Thus, we can conclude that whether the supremacy of EU law over national law can be considered ‘revolution’ depends on one’s conception of Parliamentary sovereignty. However, arguably Wade’s conception of Parliamentary sovereignty is somewhat out-dated because it is overly reliant on considering this doctrine to be a ‘political fact’ derived from the mutual agreement of the courts, Parliament and the monarchy to grant Parliament supremacy in legislative matters during the Glorious Revolution of 1688. Although this appears to be a correct understanding of the origin of the doctrine, it is unreflective of the present reality, where the doctrine has qualified and interpreted in common law by the courts. Thus, considering this, one is more inclined to support Allan’s views on the matter, regarding the change as ‘evolutionary’.


[Note that because of Brexit and the repeal of the European Communities Act 1972, EU law no longer has supremacy over national law].


Further reading:

  1. Summary of Ellen Streets case: https://simplestudying.com/ellen-street-estates-ltd-v-minister-of-health/

  2. The Models of Parliamentary Sovereignty (University of Bristol): https://legalresearch.blogs.bris.ac.uk/2017/12/the-models-of-parliamentary-sovereignty/comment-page-1/

  3. Evolution of law and Parliamentary Sovereignty (Law Teacher): https://www.lawteacher.net/free-law-essays/constitutional-law/evolution-of-law-and-parliamentary-sovereignty-constitutional-law-essay.php

  4. Feel free to read any of the cases mentioned in full but the obiter dicta in the following case provides interesting comments on having a potential ‘hierarchy of law’ (see particularly, comments on “constitutional statute(s)”): Thoburn v Sunderland City Council [2002] EWHC 195: https://www.bailii.org/ew/cases/EWHC/Admin/2002/195.html