Parliamentary Sovereignty and the EU

Posted on January 12, 2011

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by Chris Dingle – Vice President – Kingston University Students’ Union and Student of Law.

As I sat in front on my computer last night, I strayed as I often do to BBC Parliament to see what was being debated in the House of Commons. I watched for some time as several amendments to the EU Bill were being debated and watched with dismay as many members of the house made blunder after blunder when talking about Parliamentary Sovereignty. The honourable member for Harwich and Essex as he spoke made me wonder how it is that Parliament itself cannot understand Parliamentary Sovereignty. Time after time I listened to members from all sides of the house try to warp the case-law and academic comment to suit their own view on the European Union. Euroskeptics trying to bend case-law to their will. But what is the reality of Parliamentary sovereignty? Is the EU really supreme over the UK Parliament?


Background of British Parliamentary Sovereignty

Parliamentary Sovereignty arguably dates back to the glorious revolution in 1688 where James II of England was ousted from the throne when parliament invited William of Orange to invade and take the British crown in exchange for ceding vast power to parliament. For over 300 years the principle that Parliament is supreme has formed a cornerstone of British constitutional law. The principle of parliamentary sovereignty has been debated by many jurists over that period (most notably Albert Dicey) but is commonly held to have three components:

* That Parliament can make or unmake any law that it wishes to.
* That each Parliament is sovereign and Parliament may not bind future Parliaments.
* That a valid act of Parliament may not be challenged by the courts.

European Union and Sovereignty

The European Union was found originally as the European Coal and Steel Community which was born out of the ashes of the Second World War, in 1957 the Treaty of Rome established the European Economic Community and in 1967 Treaty of Brussels further expanded the community and created a single set of European Institutions. In 1972 the European Communities Act was enacted bringing Britain into the European Community. In 1992 the Treaty on European Union brought into being the EU and expanded the competencies of that body and brought about the single European Currency. The most recent development in the saga of EU development came following the mass accession of several former eastern bloc states in 2004 with the largest single intake of member states to dat. This was followed by the treaty of Lisbon that many commentators have hailed as the first constitution of Europe.

It should however be noted that as per Parliamentary Sovereignty the United Kingdom can leave the European Union at any time as it can repeal the European Communities Act 1972 (ECA 1972). It should also be noted that as a dualist state very little European Community Law has direct effect in the United Kingdom, it must be accompanied by an Act of Parliament or by a Statutory Instrument to give effect thereby reaffirming the sovereignty of Parliament. The exception to this is the doctrine of indirect effect developed by cases such as Pubblico Ministerio v Ratti and Von Colson where member state courts are expected to apply national law in compatibility with EU law. However even in this instance the threat to parliamentary sovereignty is limited following the decision in Officier van Justitie v Kolpinghuis Nijmegen which recognised that in the instance of an incompatibility a member state could not overturn a conflicting domestic law. This reaffirms the importance of Parliament itself consenting by avoiding conflict with the European law when legislating and thus implying consent.

Another important point to make is regarding Article 5 (3) of the Maastricht Treaty. The treaty provision gave rise to a principle known as subsidiarity. The principle recognises that in many areas the EU and members states share competence as it has been conferred by member states. The principle is that the EU should only take action where they can satisfy first that it is better placed to achieved the objectives of the proposed action than the member state and that second the EU should go no further than strictly necessary to achieve the objectives. This again is strong evidence of UK Parliamentary Sovereignty.

Sovereignty and Case Law

Over the last 40 years the question of supremacy has been raised several times in case law both before the European Court of Justice and the United Kingdom domestic courts. In 1963 the case of Van Gend En Loos v Nederlandse Administratie de Belastingen came before the European Court of Justice. The court held that the European Community constituted a new legal order that gave legal rights that could be enforced against both legal and natural persons in a member state’s national courts. The judgment also recognised that member states had limited their sovereign rights in certain areas and competencies. This judgment is correct in as far as by joining the European Community in 1972 the, UK Parliament voluntarily submitted themselves to this and as such limited the amount of their sovereignty they would exercise. That sovereignty has not been handed over. The UK could exercise the sovereignty tomorrow were they to repeal the (ECA 1972).

The next significant case was that of Costa v ENEL 1964. This case established the supremacy of European Law in the event of a conflict with the domestic law of a member state. This was later applied specifically to the United Kingdom in 1991 in Factortame No.2, when the European Court of Justice held that the Merchant Shipping Act 1998 was contrary to Art 43 Treaty on European Union. The main problem with this case is that for the first time since the Bill of the Rights the judiciary were once again in a position to overrule an Act of Parliament.

The more interesting case-law comes in British domestic law. Lord Denning a particularly well-respected judge stated in McCarthys v Smith, “If the time should come when our Parliament deliberately passes an Act — with the intention of repudiating the Treaty or any provision in it — or intentionally of acting inconsistently with it — and says so in express terms — then . . . it would be the duty of our courts to follow the statute of our Parliament.” This is a reaffirmation of the supremacy of the British Parliament should it choose to exercise that sovereignty.

To bolster this one can also refer to the comments of Lord Justice Laws in the case of Thoburn V Sunderland City Council where he stated “…there is nothing in the European Communities Act which allows the European Court, or any other institution of the EU, to touch or qualify the conditions of Parliament’s legislative supremacy in the United Kingdom…That being so, the legislative and judicial institutions of the EU cannot intrude upon those conditions.”

Conclusion

The Parliament of United Kingdom of Great Britain and Northern Ireland remains supreme and retains its sovereignty. However the political realities of today mean that likelihood of us exercising our full sovereignty again in the near future again is slim to say the least. The reality is that we have allowed, since 1973 and now particularly following the Treaty of Lisbon, the European Union to exercise more of our sovereignty on our behalf. That sovereignty remains ours, to reclaim or use, or lease as we see fit; but as long as our courts remember that parliament is the supreme body and are willing to apply a law that is explicitly intended by parliament to conflict with EU law, parliament will remain legally sovereign.

The question then turns to whether or not the judiciary will protect the sovereignty of Parliament? The judiciary are subject to the whim of Parliament. Bill Cash quite rightly pointed out last night that Lord Chief Justice Coke was dismissed by parliament for claiming that common law could usurp an act of parliament. This proves the point. An Act of Parliament is the foremost legal instrument in the United Kingdom. Did we need to reaffirm sovereignty with his amendment last night? No we did not because Parliament is sovereign and because the amendment codifies or states nothing. The courts have held all through these cases that we remain sovereign and that we are members of the EU has long as we as a sovereign to state to need to be.

The amendment was unnecessary and the member for Dover gave the best arguments to this. We may dislike EU Law and we may dislike its development. But whilst we chose the path of membership we are bound by own law to do so, until such a time as we decide to change it. We should not allow Euroskepticism to form attacks on our sovereignty that do not exist except for in the minds of the beholder. We must defend our sovereignty from any criticism and direct criticism at the members who wish to leave the EU, but do not legislate to do so. Even they are the no threat to parliamentary sovereignty. A parliament that choses to serve another master, is still sovereign, even when it does not chose to act so.

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