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Common Law Review
 
Domů arrow Články arrow Issue 1 - The British Constitution arrow 04: Martin Junek - The EU versus the UK
04: Martin Junek - The EU versus the UK PDF Tisk E-mail

The EU versus the UK

 

The Conflict of Two Doctrines: the Supremacy of Community Law and the Parliamentary Sovereignty as Seen in the Light of the Factortame Cases

 

 

Martin Junek

 

 

Parliamentary Sovereignty and Its Origins

 

One of the fundamental rules of the United Kingdom's constitutional arrangements is the legislative supremacy of Parliament. It is the legal doctrine which regulates the relationship between the courts and acts of Parliament. The nature of this relationship is that the courts must give effect to all acts of Parliament. No court in Britain can question the legal validity of an act of Parliament and no law making body, whether within Britain or outside, can be superior to Parliament. No court in Britain can even refuse to obey an act of Parliament because it is ultra vires or beyond the powers of the legislature. Such an act is effective and must be enforced unless and until it is amended or repealed by Parliament.

 

The doctrine owes its name of Parliamentary sovereignty to A. V. Dicey. According to his formulations, the legislative supremacy of Parliament has two aspects: one positive and one negative. The positive aspect is that "Parliament has the right to make or unmake any law whatever" and the negative one shows that "no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament"[1].

 

 

Unlimited Law Making Power of Parliament

 

Parliament is both omnicompetent and paramount. Its legislative competence is completely unlimited as far as law is concerned. There are no legal controls exerted over Parliament which remains politically responsible only to the electorate granting it law making power in regular elections. It may remodel the British Constitution, prolong its own life, legislate ex post facto, legalize illegalities, provide for individual cases, interfere with contracts and authorize the seizure of property, give dictatorial powers to the government, dissolve the United Kingdom or the British Commonwealth, introduce communism or socialism or individualism or fascism, entirely without legal restriction.[2] Thus Parliament can do anything it likes apart from bind its successors. Another question which arises is whether Parliament can deprive itself of its sovereignty. The continuing theory states that this is not possible. However, the position of the doctrine of Parliamentary sovereignty has been shaken several times since Britain's accession to the European Community in 1973.

 

The European Communities Act 1972

 

The legal relationship between the EU and member states is based among others on two fundamental principles: the doctrine of direct effect and the doctrine of the supremacy of Community law. In Britain, Parliament recognized the doctrine of direct effect through the European Communities Act 1972 by which Community law was incorporated into UK law and thus became part of it. By Section 2(1) of this Act, Community law, including all rights, powers, liabilities, obligations and restrictions, is to be given direct legal effect and must be recognized and enforced by the domestic courts of the UK.

 

The doctrine of supremacy of Community law has been accomplished despite the fact that the Treaties do not stipulate that EC law should prevail over national law of a member state where they conflict. The European Court of Justice in its practice has deduced supremacy from the objectives of the Treaties and established it in the landmark case of Costa v E.N.E.L.[3] in which the ECJ held that: "The law stemming from the Treaty… cannot be overriden by domestic legal provisions… The transfer by the States from their domestic legal systems to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail." Section 2(1) of the 1972 Act further empowered the British courts to uphold the supremacy of rights and obligations which are part of EC law. Section 2(4) deals with the potential conflict between Community and UK law: "… any enactment passed or to be passed, …, shall be construed and have effect subject to the foregoing provisions of this section".

 

On the other hand, the point of view of the British legal order that Parliament is absolutely sovereign is still very strong and creates, therefore, the ground for conflicts between the doctrine of the supremacy of Community law and that of Parliamentary sovereignty. It has taken some time for the judiciary to free itself from the traditional thesis of unlimited parliamentary sovereignty and to accept if not the supremacy then at least the primacy of Community law.

 

The Background to the Factortame Cases [4]

 

To implement and to enforce the national quota system set out by the 1970 EC Common Fisheries Policy, the British Parliament enacted, pursuant to Article 32[5] of the EC Treaty, the Merchant Shipping Act 1988 and the Merchant Shipping (Registration of Fishing Vessels) Regulations 1988 both coming into force on 1 December 1988. The Act required all British vessels to register in a newly established register, and all vessels previously registered under the Merchant Shipping Act 1894 to reregister. However, the new conditions of registration laid down in Section 4 of the 1988 Act were based on the principles of nationality, domicile and residence and, therefore, automatically excluded foreign owned, managed and operated boats from eligibility to obtain a registration and fishing license.

 

The Proceedings in the Factortame Cases

 

In R v Secretary of State for Transport, ex parte Factortame Ltd [1989] 2 CMLR 353, QB, the applicants (95 Spanish controlled vessels) were refused the right to reregister by the Secretary of State and requested judicial review of his decision. They further challenged the compatibility of the 1988 Act and the regulations and the administrative orders issued under it with Community law, explicitly Article 12 of the EC Treaty, which prevents discrimination on grounds of nationality, and Article 43, which provides for the freedom of one member state to pursue their trade in another state.

 

The Divisional Court of the Queen's Bench decided, among other things, to grant interim relief in the form of an injunction ordering the suspension of the application of both the 1988 Act and the Regulations, and confirming the validity of previous registrations made under the 1894 Act which should continue until a final decision was made. The Secretary of State appealed against the Divisional Court's order granting interim relief. The Court of Appeal held that under English common law (the doctrine of Parliamentary sovereignty) the courts had no power to suspend, by way of an interim relief, the application of acts of Parliament.[6]

 

The House of Lords Judgements

 

The House of Lords, before which the matter was brought confirmed the Court of Appeal's decision. It held that interim relief cannot be granted against the Crown (that is against the government represented here by the Secretary of State) because it is presumed that a certain act of Parliament is in accordance with Community law until the matter is determined otherwise by the European Court of Justice. Consequently, the House of Lords decided to stay the proceedings, according to Article 234 of the EC Treaty, and to refer to the European Court of Justice the question about whether under Community law English courts should have the power to grant interim protection of rights claimed under Community law, hence set aside the national legislation which does not comply with Community law. The Court of Justice in the case C-213/89 [7] decided that if the national court before which the case concerning Community law is held, "…considers that the sole obstacle which prevents it from granting interim relief is a rule of national law must set aside that rule". The House of Lords following the European Court of Justice's guidance made an order which restrained the Secretary of State from withholding or withdrawing registration in the register established and maintained under the Merchant Shipping Act 1988. By this decision the House of Lords set aside the rule of English law by which injunctions could not be imposed against the Crown.[8] In its final decision the House of Lords granted compensation for damages to Spanish vessels against the Secretary of State because there had occurred a sufficiently serious breach of Community law when imposing and applying the conditions of nationality, domicile and residence according to the Merchant Shipping Act 1988. Nevertheless, these proceedings are not the objective of this article.

 

 

What Has Happened to Parliamentary Sovereignty?

 

To try and answer this question it is necessary to clarify the application of the European Communities Act 1972, in which supremacy was granted to Community law (Section 2(4)), and certain acts of Parliament that may be contrary to Community law. There is no doubt that by enacting the Merchant Shipping Act 1988 Parliament did not intend to breach EC law. Therefore the national courts in setting aside certain provisions of the Merchant Shipping Act followed an intention expressed by Parliament in Section 2(4) of the 1972 Act and fulfilled their obligation under both Community law and UK law (the doctrine of parliamentary sovereignty). It is, however, not clear what the national courts would do if Parliament legislated deliberately contrary to Community law. Would they uphold the doctrine of Parliamentary sovereignty and follow its will given in its act or would they refuse to apply the act in question and confirm the doctrine of supremacy of Community law? The theory is unequivocal: according to the doctrine of parliamentary sovereignty, the national court has a duty to apply an act of Parliament.[9] However, in applying an act, which was passed intentionally against Community law, the court would breach not only Community law itself, but also the European Communities Act as well as the above mentioned doctrine. Such a ruling would run Britain the danger of being sued by the European Commission for violating the UK's obligations under the EC Treaty.

 

There is one view that prevails over the others and that is the presumption that Parliament, by passing the European Communities Act, voluntarily yielded its sovereignty, though it is theoretically contrary to the doctrine of parliamentary sovereignty. The courts in finding that a certain act is in direct conflict with Community law must assume that Parliament's legislating in this way was not intentional and refuse to give direct effect to such an act. Another question may arise whether the 1972 Parliament did not intend to bind its successors by passing the European Communities Act and breached the above-mentioned doctrine like this. Undoubtedly, the answer is 'Yes'. The present Parliament may feel limited in its powers not to legislate contrary to Community law and seek the ground for repealing that Act, which uncontentiously seems not to be in prospect now.

 

Is Parliament, Then, Still Sovereign?

 

Nowadays, British Parliaments are not as powerful as they used to be in the past when the British courts were treated as subordinate to them and willingly accepted even their most controversial acts. Since 1973 Parliamentary sovereignty as described by Dicey has somewhat changed more in a practical way than in theory due to the UK's membership in the European Communities. Yes, Parliament is legally sovereign and possesses unlimited legislative power, but it lacks any political will to legislate in direct conflict with Community law. As Lord Bridge in the House of Lord's decision in the case of Factortame declared "… whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. Under… the Act of 1972 it has always been clear that it was the duty of a United Kingdom court, when delivering final judgement, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law"[10].    

 

Martin Junek

Martin Junek is a graduate of Charles University Law Faculty in Prague. In 2000 he was a member of the Executive Committee of the Common Law Society and in 2001 President of the Common Law Society. Since 2001 he has been a Managing Editor of the Common Law Review.

 

 



[1] In: Dicey, A.V., An Introduction to the Study of the Law of the Constitution, 10th ed., Macmillan, 1959.

[2] In: Jennings, Sir I., The Law and the Constitution, 5th ed., University of London Press, 1959, p. 145.

[3] Costa v E.N.E.L. (case 6/64) [1964] ECR 585.

[4] In: O'Neill, A., Coppel, J., EC Law for UK Lawyers - The Domestic Impact of EC Law within the UK, 1st ed., Butterworths, 1994, pp. 38-40, 46, 132-134.

[5] All references to the Treaty articles are in the wording set out by the Treaty of Amsterdam 1997.

[6] R v Secretary of State for Transport, ex parte Factortame Ltd [1989] 2 CMLR 353.

[7] Case C-213/89 R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1990] ECR I-2433, [1990] 3 CMLR 1.

[8] R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] 1 AC 603.

[9] See Lord Denning's wording in Macarthys Ltd v Smith [1979] 3 CMLR 44.

[10] R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] 1 AC 603.

 

 
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