Q4 2005 ZA

Question:

Making reference to case-law of the domestic courts and the European Court of Justice, assess the view that membership of the European Union has fundamentally undermined the traditional concept of parliamentary sovereignty.

Answer:

The question given is mainly concerned with the views from both domestic courts and the European Court of Justice (ECJ) towards the parliamentary sovereignty of the United Kingdom in light of membership of the European Union. Therefore, it is essential to firstly define the doctrine of parliamentary sovereignty and the origin of the European Community.

The doctrine of parliamentary sovereignty as explained by AV Dicey means that the UK parliament has the right to make, unmake or amend any law, and that such power is not open to challenge by any outside body, as well as the judiciary. It follows that parliament could not be binding its successors, and may not be bound by its predecessors, or otherwise it would then suffer a limitation of its power. Dicey’s exposition were supported in the cases of Burmah Oil Corporation v Lord Advocate [1965] and Pickin v British Railways Board (1974), whereas the UK parliament have the power to even legislate an Act of Parliament which has retrospective effect, namely War Damages Act 1965, to “escape” their responsibilities to compensate the suffered countries after the war was end. The latter case was then affirmed that the validity of the Act of Parliament is unquestionable by anybody, even the English courts. However, it is argued that Dicey’s third idea of the parliamentary supremacy is not longer accurate since the passage of the European Community Act 1972, which imposed an “express repeal” condition to the future parliament to repeal particular provisions of the 1972 act. This is said that the parliament has in fact bound its successors by imposing limitation to them.

On the other hand, the UK government signed the Community treaties back in 1950s, but only effectively became the member of the European Economic Community (EEC), the European Community for Atomic Energy (EURATOM), and the European Coal and Steel Community (ECSC) in January 1973, after the passage of European Community Act 1972. The EEC Treaty committed the member states to the establishment of a common market and to the progressive approximation of their economic policies. In other words to say, all member states of the Community had actually transferred their sovereignty to the Community in order to create economic uniformity.

Back to the scenario, there has been an argument by the domestic courts and ECJ that whether or not the UK parliament has lost their sovereignty after joining the Community.

In accordance to the ECJ’s view in the case of Costa v Enel [1964], the ECJ held that the EEC Treaty, unlike any ordinary treaty, created a legal system that by virtue of accession became integral to the legal systems of the member states. Furthermore, by entering into the Treaty, the member states had limited their sovereignty, in so far as the national courts were bound to apply EC law in preference to conflicting domestic legislation. Therefore, it was seen that the ECJ has explained that Community law achieves supremacy as a consequence of transfer of legislative powers from the member states to the Community.

On top of that, it was further clarified in Simmenthal Case [1978] that every national court must apply Community law in its entirely and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law, which may conflict with it, whether prior or subsequent to the Community law. Therefore, from the case mentioned, it can be seen that the ECJ had a strong stand that Community law is ever supreme and that supremacy arises from the treaties signed since the member states had voluntarily restricted their national sovereignty in favour of the Community law.

Nevertheless, the domestic courts of the UK, in this issue, denied that the UK parliament has lost its sovereignty. They illustrate that international law cannot become part of the domestic legal system until it is incorporated by an Act of Parliament. Therefore, it is said that in order for Community law to become part of the UK’s domestic laws, it had to be incorporated by the European Community Act (ECA) 1972, which was legislated by the UK parliament.

Initially, the UK courts ruled against ECJ’s view towards restriction of national supremacy in the case of Blackburn v AG. In this case, the court held that even though the UK government has signed the Community treaties, however it bore no legal effect until they have been implemented by an Act of Parliament. Lord Denning in the said case responded that “even if the treaty is signed, it is elementary that the courts take no notice of it until embodied in an Act of Parliament”. It should be noted that the Blackburn’s case was decided “before” the passage of the ECA 1972.

Although, after ECA 1972 was passed, which then imposed the provisions on the domestic courts to follow the Community law, the UK courts remained “intentionally ignorant” towards the ECJ’s exposition by saying that the domestic courts follow the Community law is not because the restriction of the UK parliamentary sovereignty to the Community, whereas the follow it because they are following their own Act of Parliament, namely ECA 1972, which was enacted by the domestic parliament. In the case of Macarthys v Smith (1981), Lord Denning, again, exposed that the Community law such as Treaties are just merely an aid, or even as an overriding force in construing the domestic statutes.

Hence, to conclude, it is opined that the UK parliament still remain its legal supremacy as they can make or unmake any law on any subject matter. Nonetheless, although, legally speaking, that the UK can quit the Community at anytime as they want, yet practically they would not do so because this would lead them to political and economic suicide. Therefore, it is said that, the UK parliament is actually restricting their sovereignty “voluntarily” to the Community.