Previous: Parliamentary sovereignty
The EU has undoubtedly called the orthodox view of Parliamentary sovereignty into question. But before that can be explored, we must ask what the EU actually is.
What is the EU?
The EU, or European Union is an organisation consisting of 28 members countries who agree to share resources, services and people. This is done through treaties, signed by each member country. The EU originated with the Treaty of Paris in 1951 where the aim was to create a common economy which would make going to war again far more difficult for individual countries. At this time, the organisation was known as the European Coal and Steel Community. By the time the UK joined the organisation in 1972, it was called the European Economic Community. The European Communities Act 1972 implemented EU law into UK law. As of 1993, the EEC became known as the EU. Do not confuse the European Union with the Council of Europe. The European Union is the economic community, the Council of Europe is responsible for human rights.
Primary EU law
Primary EU law, effective on all members states is provided by the EU Treaty and the treaty on the functioning of the EU. This law is binding on all member states.
Secondary EU law
Secondary EU law is provided by the EU in a number of ways:
- Regulations – once passed by the EU Council and the European Parliament, or by the Commission, regulations are applicable to all member states, creating obligations which must be applied by national legislatures immediately such that they can be relied on by citizens.
- Directives – provide the basis of legislation which must be implemented from a certain date by each member state in a way of their own choosing.
- Decisions – Binding on individual members only.
- Recommendations and opinions – not binding on member states
Prior to the EC Act 1972 bringing EU law into force in the UK, other countries showed how EU law became supreme over any national law. The landmark case of Costa v ENEL [1964, ECJ] clearly established this; and it was by no means the only case. On 1st January 1973, 1500 provisions of EU law were integrated into UK law with no objection by Parliament. The EC Act itself provided some rather controversial paragraphs:
- s 2(1) provided that all EU law has enforceability in the UK, even if it was created after 01/01/1973
- s 2(4) provided that any Westminster law would be effective subject to EU law
- s 3(1) provided that UK courts must make decisions in accordance with EU decisions
There is was constitutional issue with saying EU law is supreme, Parliament legislated the laws into the UK law. There was also no constitutional issue in applying EU law made prior to 1973 to the UK. The issue arises when laws are passed by the EU after 01/01/1973. Parliament would not have legislated this later law, therefore we could say that parliamentary sovereignty has been undermined.
Early judicial reception to EU law supremacy was negative; judges inferred their own rules as to the applicability to EU law. Prior to the implementation of EU law, in 1972, Lord Diplock said in ‘The Common Market and the Common Law’:
[The] doctrine of Parliamentary sovereignty means if a subsequent act were passed by Westminster, that Act must be followed, not EU law.
Shortly after implementation, in Felixstowe Dock and Railway Co v British Docks Board , Lord Denning refused to obey EU law if a more recent Westminster statute could be applicable. He later became a little more accepting in Macarthys Ltd v Smith  where he said that EU law will apply unless Westminster expressly contradicts it; there should be no assumption that Parliament intends to contradict EU law.
The final solution
The legendary Factortame saga finally settled the dispute over EU supremacy with the case of Factortame (no. 2) . In this case, EU law was declared supreme over national law irrespective of the time at which it was created. The doctrine of implied repeal was also modified. The actual case involved Spanish applicants claiming judicial review on the ground that permitted changes make by the Secretary of State to the Merchant Shipping Act 1988 were discriminatory in preventing Spanish ship owners using UK fishing quotas to catch fish then sell them in Spain. In Factortame (no. 1), the House of Lords said that they must consult the European Court of Justice on whether interim relief should be granted. In Factortame (no .2), the House of Lords gave their judgment on the claim for interim relief. EU law overruled Westminster’s Crown Prosecution Act allowing an injunction to be granted against the Crown, namely the Secretary of State.
There are mixed opinions of the impact of Factortame (no. 2). Some thought it was outrageous that the doctrine of Parliamentary sovereignty could be so easily undermined; the Parliament of 1972 had bound that of 1988. However, there are several arguments as to why the result was not a shock.
- The ‘contractarian’ view – the UK contracted to the terms of the treaty
- The functional view – the EU could not function if its law was not supreme
- The intentional view – Parliament intended this and said so in express terms in s 2(4) of the EC Act 1972
- The idealistic view – the courts look at prevailing ideas of parliamentary sovereignty and circumstances changed in 1972
In the case of Thoburn v Sunderland City Council , the UK applied EU law as supreme without any assistance from the EU itself. Pursuant to a Henry VIII clause in the EC Act 1972, the Secretary of State altered the Weights and Measures Act 1985 in 1994 to reflect an EU directive requiring primarily metric-oriented trading. The claimants argued that the 1985 Act has impliedly repealed the 1972 EC Act such that they could still trade in imperial units. It was ruled that there was a hierarchy of statutes: normal statutes, and ‘constitutional’ statutes. The latter could not be impliedly repealed by a normal statute. As such, the Secretary of State’s modification was effective. The autonomous application of supreme EU law also occurred in R v Secretary of State for Employment ex parte Equal Opportunities Commission .
A final note to this idea of EU supremacy is this: in 1972, Parliament legislated to give effect to EU law in the UK. Therefore, the traditional view of Parliamentary sovereignty could still be preserved: Parliament is entitled to repeal the EC Act 1972 at any time. Politics would likely get in the way, but legally, it is possible.