UK’s accessions to the European Union

In the Factortame litigation, the British courts were presented with an irreconcilable conflict between UK legislation and EU law. The national legislation – the Merchant Shipping Act 1988 – provided that fishing vessels could only be registered as British, so gaining the right to exploit the UK fishing quota, if 'a genuine and substantial connection with the United Kingdom' could be demonstrated.

It was argued that this requirement conflicted with certain guarantees set out in the Treaty of Rome, such as the right not to be discriminated against on grounds of nationality and the right of individuals and businesses to establish themselves anywhere in the Community.

In R v Secretary of State for Transport, ex p Factortame Ltd the Court of Appeal ([1989] 2 CMLR 353) and then the House of Lords ([1990] 2 AC 85) held that the divisional court, in granting interim relief to the owners of the shipping vessels, had no power as a matter of English law to grant such an order, it conferring upon the applicant 'rights directly contrary to parliament's will' (Lord Bridge).

After receiving guidance from the European Court of Justice as to whether there was an overriding principle of Community law requiring the court to provide effective interim relief in such a claim, it was held that an English court could disapply national legislation which conflicted with Community law and grant interim relief. In this monumental case, the House of Lords acknowledged that its obligation to follow the principles of Community law as affirmed by the European Court of Justice required it to deny the effects of an Act of Parliament.

In essence, Parliament had succeeded in binding its predecessors as the Merchant Shipping Act succumbed to an earlier statute: the European Communities Act 1972. The Lord Chancellor Lord Irvine of Lairg in a speech to the Supreme Court in Washington (1998), argued that the Factortame litigation, "does not impair the ultimate sovereignty of Parliament, because, in giving effect in this way to Community law, the courts are simply heeding Parliament's intention – as expressed in the legislation which facilitated British membership of the Community – that European law should take priority.

" However, Sir William Wade has argued contrary to this, defining the shifts in sovereignty as 'revolutions, breaks in continuity and in the legal pedigree of legislative power'. This 'new' doctrine of parliamentary sovereignty appears to hold little place for the Diceyan view, which fails to accommodate for the surrender of sovereignty to the European Union.

Even if Parliamentary sovereignty remained formally intact, the orthodox conception of the doctrine is not without its flaws, for the UK still retains its commitments to international treaties, and can be said to have in reality relinquished its power to independent Commonwealth states, despite the ruling in Manuel v AG [1983] Ch 77. Although the UK's membership of the European Union is not contested, it remains able to reclaim the full extent of its sovereignty by repealing or amending the European Communities Act 1972.

However, the political and economic fallout from such a move would in reality make it an unfeasible option. At present, the legislature refrains from passing any legislation in deliberate and direct contravention with European law; however, should the situation arise, it is not certain how the courts would react. The UK's entry into the European Economic Community did not have as one of its aims the alteration of Britain's constitution. However, the Treaty of Rome did change the country's constitution by creating new supranational institutions with law making powers.

The doctrine of Parliamentary sovereignty has doubtlessly been altered by the UK's accession to the European Community, reducing Parliament's capacity for independent action. Sovereignty as a doctrine can no longer be regarded as being entrenched within a classic statement by a 19th Century political commentator, but now must be looked at as a changing and evolving entity, the boundaries of which judges decide when reacting to political and historical developments such as the UK's accessions to the European Union.