European Community Act

The UK’s accession to the European Union has given rise to a growing concept that by doing so the idea of Westminster Parliamentary sovereignty is nothing more than a misnomer. It is the doctrine of community supremacy that challenges the age old concept of the sovereinty of Westminster Parliament. Prior to its accesstion to the European Union there was little doubt that Parliamnent had the authority to make any law and the courts were required to apply that law, provided it was properly enacted.

However, the doctrine of community supremacy challenges this concept by requiring that all Member States recognize and apply community law over and above domestic provisions. A close examination of UK Parliamentary sovereignty defies this logic and the following discussion will bear this out. Two key provisions in the UK set the framework for concerns about the futility of the pharse “UK Parliamentary sovereignty. ”  These provisions are the European Community Act 1972 and the Human Rights Act 1998.

Section 2 of the 1972 Act indorses all treaties, obligations and law within the European Union to the extent that it is “enforced, allowed and followed accordingly”. The Human Rights Act 1998 goes a bit further by not only adapting the European Convention on Human Rights, but makes provision for domestic law to be intepreted in such a way as to render it compatible with Conventions rights. Section 3(1) of the Human Rights Act 1998 provides as follows:

“…so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. ” Moreover, Section 4 empowers the court to make a declaration of imcompatibilty when conflicts arise between domesntic law and convention rights. Prior to the introduction of the Human Rights Act 1998 the Parliamentary sovereignty of Westminster was for all intents and purposed beyond reproach. There was no such power for the review of domestic law and its incompatibility with conventions rights.

D. Nicols argues however, that this new power under the Human Rights Act does no necessarily challenge concepts of UK Parliamentary sovereignty. It merely provides Parliament with the power to ensure that its citizen’s convention rights are safeguarded and protected. Adding to conerns about the ceding of Parliamentary sovereignty to community sovereignty is the ruling in Van Gend en Loos v Nederslande Administratie der Belastingen CMLR [1963] 105. It was held that:

“The Community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subject of which comprise not only the Member States but also their nationals… The transfer by the states from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights. ” This concept of permanent limitation on Parliamentary sovereignty is not entirely true.

When held up to scrutiny against Dicey’s theory on Parliamentary sovereignty it immediately fails. As Dicey notes, Parliamentary sovereignty is such that: “Parliament has the right to make or unmake any law whatever”. In other words it is by an act of Parliament that sovereignty has been limited and Parliament in its supremacy may “unmake” that law at anytime. When Dicey’s theory is viewed together with the futility of Section 4 of the Human Rights Act, it is immediately clear that UK Parliamentary sovereignty remains intact.