The Sovereignty of the UK Parliament

"The orthodox doctrine of the Sovereignty of the UK Parliament has been fundamentally displaced by accession to the European Union. " Discuss. Before attempting to distinguish what effect membership of the European Union has had on the sovereignty of the United Kingdom Parliament, it is first important to ascertain what the 'orthodox' perception of this doctrine is. The doctrine of Parliamentary sovereignty in the UK can be traced back to the Glorious Revolution of 1688, which established the superiority of statute over prerogative powers.

Parliament's legislative supremacy involves not only the right to change the law, but that they alone should have that right. By the sovereignty of Parliament it is meant that there are no constitutional limitations on legislative powers of 'Parliament': the Queen in Parliament, through which a Bill approved by the House of Commons and House of Lords receives Royal Assent and becomes an Act of Parliament.

It also extends to include the concept that the courts are under an obligation to give effect to legislation passed by Parliament, and not to question Parliamentary decisions embodied in statute. Thus defined, Dicey said of Parliament, that is had 'under the English constitution, the right to make or unmake any law whatever; and further that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.

'(Dicey, The Law of the Constitution 1885 p39-40). This statement by Dicey embodies a classic description of the orthodox doctrine of Parliamentary sovereignty. However, the Diceyan concept of the absolute, infinite sovereignty of Parliament is in need of some revision. The UK's membership of the European Union produces difficult questions of competing supremacies of Parliament and the primacy of EU law.

Britain's accession to the European Economic Community on 1st January 1973, was described by Anthony King as having "profound constitutional consequences". (Does the United Kingdom Still Have a Constitution? 2001 p54) Britain's application for membership was made in 1967, the Treaty of Accession signed on 22nd January 1972 and this was implemented by the European Communities Act 1972. The basis of this Act was a white paper published by the Labour government in 1967, intended to address the constitutional implications of membership of the EC.

The paper pointed out that the effect of the UK adhering in advance to future instruments imposed by the Community institutions had no precedent in this country, and would result in a 'constitutional innovation'. Whether this innovation could be successfully implemented was never resolved before the introduction of the 1972 Act. The European Communities Act had to provide for the application in the United Kingdom of Community law – both the law already existing and that which the institutions would issue in the future.

Sections 4 – 12 made specific alterations which were necessary to bring UK law immediately into line with Community law. However, the main corpus of Community law was given effect in the UK by the provisions under section 2(1) of the act which provided that all directly effective Community law was to be recognised and enforced in the UK "without further enactment", thus giving legal effect to almost the entire existing body of Community regulations together with the directly effective provisions of directives, decisions and the Treaties.

The subsection gives effect in the UK to enforceable community rights 'from time to time' as arising under the Treaties, therefore attempting to effect the 'constitutional innovation' discussed in the government white paper and cover prospective legislation and well as that already in force at the time of enactment. The effect of section 2(4), that 'any enactment passed or to be passed… shall be construed and have effect subject to the forgoing provisions of this section' is that any enactment including an Act of Parliament is to be construed and have effect subject to Community law in force in the UK.

The 'forgoing provisions' including those in subsection (1) which give 'enforceable community rights' the force of law in the United Kingdom. These two subsections operating together have a very potent effect in establishing the primacy of EC law over domestic statutes passed before 1 January 1973. However, a more difficult issue arises over enactments made after 1 January 1973, in the situation where the domestic act conflicts with the Community provisions. The traditional rule had been that the most recent Act expresses Parliament's will and therefore takes precedent over any earlier legislation.

However, this does not reflect the need for primacy of EC law and the intention implied in section 2(4) of the European Communities Act 1972 that Community law should prevail. This conflict raises the issue of the continuing sovereignty of Parliament: does the UK have unfettered legislative powers and thus retain its sovereignty, or must it adhere to EC law even if in direct contravention with the wishes of the national Parliament? And if it should happen that Parliament legislates in a manner which is expressly in defiance of Community law, how would the courts respond?

This issue was never resolved prior to the passing of the Act, the Lord Chancellor simply stating that it would be 'unprofitable to speculate' on it, but nevertheless the possibility of a direct conflict was never ruled out. The way in which apparent inconsistencies have been resolved by the courts between EC law and post-1973 statutes has not been an exact science, as the cases of Macarthys Ltd v Smith [1979] 3 All ER and Pickstone v Freemans Plc [1989] AC 66 have illustrated.

In Macarthys v Smith the question arose of the relationship between the Equal Pay Act 1970 – as re-enacted by the Sex Discrimination Act 1975 – and Community law. Was a woman permitted under the Equal Pay Act 1970 to claim equal pay only with men currently in employment with the employer, or did it extend to male predecessors for comparison? The court made reference under Article 117 of the EC Treaty (now 234) for a preliminary ruling by the European Court of Justice on the application of Article 119 (now 141).

They held that the principle enshrined in Article 119; that 'men and women should receive equal pay for equal work' was not to be limited to situations in which men and women were being employed simultaneously, confirming Lord Denning's (who was in the minority in the Court of Appeal) interpretation of the Article. When the case returned to the Court of Appeal, Lord Denning took the opportunity of saying (at page 200), "Community law is now part of our law: and, whenever there is any inconsistency, Community law has priority.

"However, Lord Denning went on to propose that Parliament could evade its duty to follow Treaties and their provisions by stating its intention in "express terms" It was, in his opinion 'the duty of our courts to follow the statute of our Parliament' in such a circumstance. On this basis, the entrenchment that section 2 of the European Communities Act provides can be limited, leaving open the possibility that Parliament might wish to assert its own supremacy. When examining the extent that Parliament has surrendered its sovereignty to the European Union, the most recent and direct confrontation has arisen in the Factortame cases.