Parliamentary Sovereignty vs. EU Supremacy

1. Introduction

The UK Constitution confers Parliament sovereignty, which cannot be overridden by the courts or any other rules. However, membership of the European Union makes the EU law supreme and it cannot be overridden.

This essay will explore the extent of the Parliament Sovereignty and EU supremacy and the challenges arising between the two doctrines.

2. Whether UK’s Parliamentary Sovereignty could stand against the supremacy of EU and its law

Parliamentary sovereignty is derived from the Constitution. The Parliament possesses the ultimate power. It applies laws equally to everyone. The rule of law thus governs the nation. This rule of law is recognised by the Constitutional Reform Act 2005. Its Section 1 provides that the Act does not adversely affect the “constitutional principle of the rule of law”. The doctrine of Parliamentary sovereignty requires the courts to obey statutes. Any rules by external bodies cannot override this doctrine.

The supremacy of the Parliament gives lesser power to the courts over the Constitution. This is recognised in the statutory Literal rule that requires the judiciary to give legislative words their plain, ordinary or literal meaning. As such, the courts cannot review of what the law ought to be.

One aspect that could disrupt the Parliament supremacy could stem from Human Rights Act 1998 (“HRA 1998”). HRA 1998 incorporated the European Convention of Human Rights (“ECHR”). The UK Parliament must ensure compliance with these Convention rights. To do so, the courts must scrutinise any new legislation compliance with the Convention rights. This is provided under Section 3 of the HRA 1998. Section 4 also empowers court’s intervention where there are ambiguous languages of a statute or any unpredictable factual situations. As such, it could be stated that the greatest or the most controversial challenge to Parliamentary sovereignty is posed by UK’s membership of the European Union.

2.1. EU Supremacy dents UK’s Parliamentary Sovereignty

EU law is supreme over laws of member states. The reasoning is given by European Court of Justice (ECJ) that being a member of the EU, member states have transferred their powers to the EU. As such, the doctrine of EU supremacy is placed on states’ sovereignty. The goal is to ensure efficiency, independence and uniformly application of EU law. As such, ECJ held that EU law occupies a core part in domestic laws. Domestic laws cannot precede EU law.

1. Toby Cooper, Need to Know: Edexcel A-level Politics (Hodder Education 2018).
2. John Alder and Keith Syrett, Constitutional and Administrative Law (Macmillan International Higher Education 2007) 180.
3. Toby Cooper, Need to Know: Edexcel A-level Politics (Hodder Education 2018).
4. Rebecca Huxley-Binns and Jacqueline Martin, Unlocking The English Legal System (Taylor & Francis 2013) 63.
5. Hilaire Barnett, Constitutional & Administrative Law (Taylor & Francis 2017) 90.
6. Martin Partington, Introduction to the English Legal System 2013-2014 (Oxford University Press 2013) 56-58.

Declaration 17 of the Lisbon Treaty provides for supremacy of EU law. The settled case laws and conditions of ECJ form the foundation of this doctrine. Thus, in the event of conflict, EU law holds supremacy. This is supported by the ruling in Larsy, which stated that administrative bodies cannot apply domestic laws in conflict with EU laws.

It is, thus, observed that membership of the EU has created a profound consequences against the UK constitution. The base lies in the principle of EU supremacy and direct effect of EU law. The latter enables individuals to exercise rights, which must be upheld by the national courts. There are multiple cases that demonstrate these aspects. For example, the case of Costa has demonstrated this. The case of Van Gend & Loos NV established the doctrine of direct effect. Any provision that is given a direct effect must be applied by domestic courts. The courts do not need to refer to any national law.

Further provision of EU that ensures it supremacy and dents UK Parliamentary sovereignty stems from Article 267 of TFEU. This Article provides authority to ECJ to issue preliminary rulings on treaty interpretation. ECJ can thus validate acts of EU institutions and including national measures.

2.2 Compatibility with ECtHR rulings

The incorporation of ECHR in HRA 1998 has ensured the UK Parliament to comply with Convention rights. This has opened the Parliament to judicial scrutiny. As such, decisions of ECtHR have impact on the Parliament and its judiciary.

Existence of multiple cases where the ECtHR has ruled violation of ECHR principle by British law or a state action is testimony to the challenge against Parliamentary sovereignty. These rulings force the government to make necessary law amendments in order to meet the compliance requirement. In case of breach of Convention rights, the domestic courts must determine the case before the case goes to ECtHR. Further, parties can access residual rights to access ECtHR. The compliance requirement by the Parliament, the power of the court and the rights of individual are elements that can override Parliamentary sovereignty.

1. Flaminio Costa v Enel, [1964] ECR 585 (6/64).
2. Ibid.
3. Redmond Arigho, ‘The Supremacy of European Union Law: An Inevitable Revolution or Federalism in Action?’ (2014) Journal of Postgraduate ResearchVolume XIII 7 accessed 4 December 2020 .
4. The Lisbon Treaty, Declaration 17.
5. T. Moorhead, ‘European Union Law as International Law’ (2012) 5(1) European Journal of Legal Studies 126.
6. Gervais Larsy v Institut national d'assurances pour travailleurs indépendants (Inasti), Case C-118/00 [2001] ECR I-5063
7. Van Gend & Loos NV v Inspecteur der Invoerrechten en Accijnzen, Enschede Case 32/84.
8. Trevor C. Hartley, The Foundations of European Union Law: An Introduction to the Constitutional and Administrative Law of the European Union (Oxford University Press 2014) 209.
9. TFEU, Article 267.
10. R. Baratta, ‘National Courts as Guardians and Ordinary Courts of EU Law: Opinion 1/09 of the ECJ’ (2011) Legal Issues of Econ. Integration 297.
11. Martin Partington, Introduction to the English Legal System 2013-2014 (Oxford University Press 2013) 60.

Parliament’s obligation to ensure compatibility with ECHR rights place the UK Parliament in a subservient position. Section 2 of the HRA 1998 is an example. It provides for interpretation of the Convention rights in accordance with ECtHR ruling. This is supported by the case of R (Ullahr, where it was ruled that a domestic court must not dilute decisions of ECtHR without showing strong reasons. It further ruled that the Convention rights must not be interpreted in a different manner.

Alternative argument could be that the Parliament could alter its basic requirement, just like it did with HRA 1998, for lawmaking. It could redesign to impose restraint on enacting legislation. They did not by limiting freedom of future Parliament in regard to certain particular laws made by the EU. It could override EU law by repealing the European Communities Act 1972.

3. Conclusion

EU is supreme until the hierarchical structure conferred by the UK Constitution provides so. EU membership makes EU law override UK rule of law. However, this is only possible to the extent the UK Parliament allows. Principles of compatibility, compliance and subservience are as long as permitted by Parliament.

1. Ibid, 62.
2. Ullah v Special Adjudicator [2002] EWCA Civ 1856.
3. Ibid.
4. John Alder and Keith Syrett, Constitutional and Administrative Law (Macmillan International Higher Education 2007) 181.

Legislation

The Constitutional Reform Act 2005

The European Convention of Human Rights

The European Communities Act 1972

The Human Rights Act 1998

The Lisbon Treaty

The Treaty on the Functioning of the European Union (TFEU)

Cases

Flaminio Costa v Enel, [1964] ECR 585 (6/64)

Gervais Larsy v Institut national d'assurances pour travailleurs indépendants (Inasti), Case C-118/00 [2001] ECR I-5063

Ullah v Special Adjudicator [2002] EWCA Civ 1856

Van Gend & Loos NV v Inspecteur der Invoerrechten en Accijnzen, Enschede Case 32/84

Bibliography

Books

Alder J and Keith Syrett, Constitutional and Administrative Law (Macmillan International Higher Education 2007)

Barnett H, Constitutional & Administrative Law (Taylor & Francis 2017)

Cooper T, Need to Know: Edexcel A-level Politics (Hodder Education 2018)

Hartley TC, The Foundations of European Union Law: An Introduction to the Constitutional and Administrative Law of the European Union (Oxford University Press 2014)

Huxley-Binns R and Jacqueline Martin, Unlocking The English Legal System (Taylor & Francis 2013)

Partington M, Introduction to the English Legal System 2013-2014 (Oxford University Press 2013)

Journals

Arigho R, ‘The Supremacy of European Union Law: An Inevitable Revolution or Federalism in Action?’ (2014) Journal of Postgraduate Research Volume XIII 7 accessed 4 December 2020

Baratta R, ‘National Courts as Guardians and Ordinary Courts of EU Law: Opinion 1/09 of the ECJ’ (2011) Legal Issues of Econ. Integration 297

Moorhead T, ‘European Union Law as International Law’ (2012) 5(1) European Journal of Legal Studies 126

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