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Transcript of Lecture Outline
Recaps: Sovereignty and EU Law
EC Law and the UK
Sovereignty and the EC: the early years
Analysis: Revolution or Evolution?
New legal order (Van Gend)
Supremacy (through principles)
Cases showing supremacy
1) Parliament can make or unmake any law whatever, on any subject matter
2) No Parliament is bound by its predecessors or can bind its successors
3) No body, including a court of law, can question the validity of an Act of Parliament
Challenges and heresies though ……
Section 2(1): EU law automatically part of domestic law
Section 2(4): Courts to interpret domestic law in line with EU law
Section 3(1): EU law is part of UK law, and not foreign law
European Communities Act 1972
The early days ...
“It is a consequence of the doctrine of [parliamentary sovereignty] that if a subsequent Act…were passed that was in conflict with any provision of the Treaty which is of direct application….the courts of the United Kingdom would be bound to give effect to the Act…notwithstanding any conflict”. (Lord Diplock, ‘The Common Market and the common law’  Law Teacher 3, at 8:)
Felixstowe Dock and Railway Co v British Docks Board  2 CMLR 655, 659:
“It seems to me that once the Bill is passed by Parliament and becomes a Statute that will dispose of all this discussion about the Treaty. These courts will have to abide by the Statute without regard to the Treaty at all”. (Lord Denning)
“There is in theory no constitutional means available to us to make it certain that no future Parliament would enact legislation in conflict with Community law. It would, however, be unprofitable to speculate on the academic possibility of a future Parliament enacting legislation expressly designed to have that effect. Some risk of inadvertent contradiction between United Kingdom legislation and Community law could not be ruled out” (Lord Chancellor, HL Deb, 8th May 1967, col 1203)
“In construing our statute, we are entitled to look at the Treaty as an aid to its construction: and … as an overriding force. If on close investigation it should appear that our legislation is deficient or is inconsistent with Community law by some oversight of our draftsmen then it is our bounden duty to give priority to Community law. Such is the result of s. 2(1) and (4) of the European Communities Act 1972.
Thus far I have assumed that our Parliament, whenever it passes legislation, intends to fulfil its obligations under the Treaty. If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it or intentionally of acting inconsistently with it and says so in express terms then I should have thought that it would be the duty of the courts to follow the statute of our Parliament”.
Lord Denning in McCarthy's v Smith
“having regard to the express direction as to the construction of enactments ‘to be passed’ … contained in s.2(4), anything short of an express positive statement in an Act of Parliament passed after 1st January 1973, that a particular provision is intended to be made in breach of an obligation assumed by the United Kingdom under a Community treaty, would justify an English court in construing that provision in a manner inconsistent with a Community treaty obligation of the United Kingdom” (Lord Diplock)
Trevor Allan states: “The attempt to entrench section 2(1) of the European Communities Act by means of section 2(4) has to some extent succeeded; the effect of the decision seems to be to impose a requirement of form (express wording) on future legislation designed to override Community law. In short, Parliament in 1972 accomplished the impossible and (to a degree) bound its successors”. (TRS Allan ‘Parliamentary sovereignty: Lord Denning’s dextrous revolution’ (1983) 3 OJLS 22, 25):
Case 12/81 Garland v British Rail Engineering Ltd (1983)
R v Secretary of State for Transport, ex p Factortame Ltd (No 1)  2 AC 85
“precisely the same effect as it a section were incorporated in Part II of the Act of 1988 which in terms enacted that the provisions with respect to registration of British fishing vessels were to be without prejudice to the directly enforceable Community rights of nationals of any member state of the EEC” (Lord Bridge)
Case C-213/89, R v Secretary of State for Transport, ex p Factortame Ltd  ECR I-243
R v Secretary of State for Transport, ex p Factortame Ltd (No 2)  1 AC 603
A form of entrenchment that had not been seen before.
S.2(4) fettering sovereignty?
R v Secretary of State for Transport, ex p Factortame (No 3)  QB 680
R v Secretary of State for Employment, ex p Equal Opportunities Commission  1 AC 1
Factortame (No 2)
Some public comments on the decision of the European Court of Justice, affirming the jurisdiction of the courts of Member States to override national legislation if necessary to enable interim relief to be granted in protection of rights under Community law, have suggested that this was a novel and dangerous invasion by a Community institution of the sovereignty of the United Kingdom Parliament. But such comments are based on a misconception. If the supremacy within the European Community of Community law over the national law was not always inherent in the EEC Treaty it was certainly well-established in the jurisprudence of the European Court of Justice long before the United Kingdom joined the Community. Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. Under the terms of the Act of 1972 it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law. … Thus there is nothing in any way novel in according supremacy to rules of Community law in those areas to which they apply and to insist that, in the protection of rights under Community law, national courts must not be inhibited by rules of national law from granting interim relief in appropriate cases is no more than a logical recognition of that supremacy”.
Revolution or Evolution?
Professor Sir William Wade
Nick Barber (2011 article “The afterlife of parliamentary sovereignty”)
Jackson v Attorney-General  UKHL 56
(Lord Steyn in particular)
“When in the second Factortame case the House of Lords granted an injunction to forbid a minister from obeying an Act of Parliament, and the novel term ‘disapplied’ had to be invented to describe the fate of the Act, it was natural to suppose that something drastic had happened to the traditional doctrine of Parliamentary sovereignty. The established rule about conflicting Acts of Parliament, namely that the latter Act must prevail, was evidently violated, since the later Act in this case was the Merchant Shipping Act 1988, yet it was disapplied under the European Communities Act 1972. The Act of 1972 had provided for the subordination of English law to European Community law by section 2(4), enacting that European Community law was to prevail over Acts of Parliament ‘passed or to be passed’. When that Act was nevertheless held to prevail it seemed to be fair comment to characterise this, at least in a technical sense, as a constitutional revolution. The Parliament of 1972 had succeeded in binding the Parliament of 1988 and restricting its sovereignty, something that was supposed to be constitutionally impossible.” (Wade, ‘Sovereignty: revolution or evolution?’ (1996) 112 LQR 568)
“…far from dramatic, let alone unauthorised, change … the House of Lords merely determined what the existing constitutional order required in novel circumstances”.
“If it is possible to recognise limits on the power of Parliament to enact legislation which conflicts with European Community law, even if only to the extent of requiring express wording, it is equally possible to countenance other limits on parliamentary sovereignty which reflect the demands of constitutional principle. Since the requirement of judicial obedience to statutes constitutes a principle of our common law … its nature and scope are matters of reason, governed by our understanding of the constitution as a whole.”(Allan, ‘Parliamentary sovereignty: law, politics, and revolution’ (1997) 113 LQR 443
R v Secretary of State for the Home Department ex parte Simms 
“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words …This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document” (Lord Hoffman)
“…Being sovereign, [Parliament] cannot abandon its sovereignty. … [AS IT WOULD DO THROUGH IMPLIEDLY REPEALING THE ECA 1972]
The common law had in recent years allowed, or rather created, exceptions to the doctrine of implied repeal: a doctrine which was always the common law’s own creature. There are now classes or types of legislative provision which cannot be repealed by mere implication. …The courts may say – have said – that there are certain circumstances in which the legislature may only enact what it desires to enact if it does so by express, or at any rate specific provision. The courts have in effect so held in the field of European law itself…
It seems to me that there is no doubt but that in Factortame the House of Lords effectively accepted that section 2(4) [of the European Communities Act 1972] could not be impliedly repealed, albeit the point was not argued….
In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental….And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it were ‘ordinary’ statutes and ‘constitutional’ statutes….The European Communities Act 1972 is, by force of the common law, a constitutional statute.
Ordinary statutes may be impliedly repealed. Constitutional statutes may not”
Essential post-lecture reading
Elliott and Thomas, pp.330 – end of chapter
Parpworth, pp.86 – end of chapter
N. Barber, ‘The afterlife of parliamentary sovereignty’ (2011) 9(1) International Journal of Constitutional Law 144
Craig, ‘Britain in the European Union’ in Jowell and Oliver (eds), The Changing Constitution 6th edn (Oxford: Oxford University Press, 2007) 84-108
Craig, ‘Sovereignty of the United Kingdom Parliament after Factortame’ (1991) 11 Yearbook of European Law 221.
TRS Allan ‘Parliamentary sovereignty: Lord Denning’s dextrous revolution’ (1983) 3 OJLS 22
Bradley, ‘The Sovereignty of Parliament: Form or Substance?’ in Jowell and Oliver (eds), The Changing Constitution 6th edn (Oxford: Oxford University Press, 2007) 25-59
Wade, ‘Sovereignty – Revolution or Evolution?’ (1996) 112 Law Quarterly Review 568
TRS Allan, ‘Parliamentary sovereignty: law, politics, and revolution’ (1997) 113 LQR 443
Campbell and Young, ‘The Metric Martyrs and the Entrenchment Jurisprudence of Lord Justice Laws’, (2002) Public Law 399