‘The UK’s membership in the European Union has fundamentally altered UK constitutional law by eroding Parliamentary sovereignty.’ Discuss.
In the 19th century, A. V. Dicey, wrote of the twin pillars of the British constitution. These pillars are the principle of Parliamentary sovereignty and the rule of law. Parliamentary sovereignty means that Parliament is the supreme law-making body: the Acts passed are the highest source of English law. Following the UK’s membership of the European Economic Community in 1972, the UK not only became bound by the laws of the EU, but also the supremacy of European Union law. The contention between the dominance of EU law over parliamentary supremacy is ascertained in Thoburn v Sunderland City Council which
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sustained that the European Communities Act 1972, could not be revoked by the passing of inconsistent legislation with EU law. Therefore it will be argued on this basis that the UK’s membership of the EU has eroded parliamentary sovereignty and as a result of that, fundamentally altered UK constitutional law as English law must ultimately abide with EU law. The European Communities act 1972 was the foundation for the reception of EU law when the UK joined the EU. ECA 1972, s.2(4): ‘any enactment passed or to be passed… shall be construed and have effect subject to the foregoing provisions of this section’. To summarise, any UK domestic statute before or after the ECA will be applicable to EU law. Further the Rule of interpretation meant that UK courts should interpret domestic legislation consistently with the EU where possible. Finally the Rule of priority denotes that Acts of Parliament are only effective to the extent that they are consistent with EU law, and they are ineffective, or unenforceable to the extent that they are not. In the event of a conflict, EU take precedence. S.2 (4) recognizes in the domestic legal context the ‘principle of supremacy’ which had been well established at EU level in the jurisprudence of the European Court of Justice (Costa v Enel 1964 ECR 585). In support of the idea that EU law should take precedence Lord Bridge in Factortame (no 2) stated ‘…whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary.
Under the terms of the 1972 Act 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.’ [R v Secretary of State for Transport, ex parte Factortame (no. 2) 1 AC 603, 658-59 (per Lord Bridge)]. Therefore it can be said that the UK retains parliamentary sovereignty in the sense that it can also leave the EU. However the UK voluntarily and knowingly entered the agreement and thus sacrificed parliamentary sovereignty which in turn restricts parliament’s legislative powers and so constitutional law in turn.
A key result of the principle of parliamentary sovereignty is that there is no hierarchy in regards to Acts of Parliament: all parliamentary legislation is, in principle, of equal validity and effectiveness. Yet, the judgement of Thoburn in 2002 indicated that there may be a special class of "constitutional statutes" such as the Human Rights Act 1998. This special class infers that parliamentary sovereignty has been eroded as despite the supposed equal validity of Acts, there are those which preside over them which in this case is EU
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law. Parliamentary sovereignty also means that judges cannot invalidate or overrule legislation: they are to enforce it.
In practice however the UK consents to British and European courts to review legislation to comply with international standards under the Human Rights Act 1998, and consents to follow EU law under the European Communities Act 1972. However, it has been stated that if Parliament were to expressly reject its treaty obligations the courts would be obliged to give effect to a corresponding statute, “If the time should come when our Parliament deliberately passes an Act – with the intention of repudiating the Treaty or any provision of it – or intentionally of acting inconsistently with it – and says so in express terms – then . . . it would be the duty of our courts to follow the statute of our Parliament.” Lord Denning, Macartys Ltd v Smith [1979] ICR at p. 789.[28] A key example of this to note is the Merchant Shipping Act 1998 which was inconsistent with EU law resulting in its
invalidity. To conclude, it is evident from precedent that EU membership to a great extent does require a sacrifice of sovereignty from the member state and involve a curtailment of the Parliament’s power to legislate, but that curtailment takes effect by express authority of the Parliament, which, at least theoretically, it retains the power to revoke. Professor Goldsworthy: ‘what is at stake is the location of ultimate-decision making authority in a legal system’. We live in a society dedicated to the rule of law; in which Parliament has power, subject to limited, self-imposed restraints, to legislate in a way which infringes the rule of law; and in which the judges, consistently with their constitutional duty to administer justice according to the laws and usages of the realm, cannot fail to give effect to such legislation if it is clearly and unambiguously expressed.
This paper will argue that the Supreme Court of Canada has adopted a quasi-legislative approach in its decision making as a result of the Charter of Rights and Freedoms, 1982. Quasi-legislative is defined as having a partly legislative character by possession of the right to make rules and regulations, having the force of law (Merriam-Webster). In this paper, it is useful to define quasi-legislative as the court’s ability to influence policy, be it innocent or motivated, through charter enf...
Simmonds C., ‘Paramountcy and the ECHR: a conflict resolved? [2012] Cambridge Law Journal Vol. 71 Issue 3, 498-201
an Act of Parliament, a court ruling or an EU law in comparison to the
... idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution’ (2008) OJLS 709.
Bamforth,N. Int. Jnl. Of constitutional law. Current issues in United Kingdom constitutionalism: An introduction 2011 9 (1) 79-85 doi: 10.1093/icon/mor029 (Date of Access: 12/12/11)
Pier Luigi Petrillo, Democracies under Pressures. Lobbies and Parliaments in a comparative public law, Giuffrè 2011
Conn (1968). Within this case the claimant argued that he did not want to pay his taxes because Parliament was using them to fund nuclear missiles, and this was a breach of the Geneva Convention. The court said that "Parliament shall not be bound if it so desired", that is to say it is not for anyone to declare Parliamentary action illegal. This case shows us how Parliament is supreme in the respect no one can challenge its judgement.
This essay addresses the criticism firstly by clarifying the concept of democratic legitimacy and democratic deficit. It also introduces pertinent theories with a focus on the constructive and ideological complexity of the EU. Then it explains the contextual and normative relation between the EU and democracy from its history and some of the major treaties. The essay continues to the debates between advocates and critics of the EU’s democratic legitimacy, yet with a focus on the latter, further dealing with two main dimensions of institutional flaws affecting the legislative process and the insignificance of European citizens to the EU regime. After remarking conventional and possible measures to alleviate the deficiency, it draws a conclusion that the de...
The rule of law is held supreme in the United Kingdom. In order to reinforce the rule of law, the House of Commons was deemed to be the supreme legislative body in order to uphold the rule of law. The law formulated by the parliament is known as the statutory law. The process by which statutory law is created is divided in to two procedural subdivisions, the pre-parliamentary procedure, and the parliamentary procedure . While it may appear that the pre-parliamentary procedure and the parliamentary procedure are separate and unrelated procedural courses, they are not. Both procedures compliment each other, in that with each stage a definite part of an act’s life is complete.
On one hand, political constitutionalists argue that parliamentary sovereignty is the underlying principle in the British constitution as power and law making are bo...
As Craig and De Burca state, 'at the time of the Lisbon Treaty, however, the UK and Poland negotiated a protocol which purports to limit the impact of the Charter in those states.’ . The UK first expressed a desire under protocol 7 which exempts them from being legally bound by the rights outlined in the Charter, they were quickly followed by Poland who also expressed a wish to join protocol 7. The protocol contained two articles which stated that ' The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms ' and ' To the extent that a provision of the Charter refers to national laws and principles, it shall only apply to Poland or the United Kingdom to the extent that the rights or principle that it contains are recognized in the law or practices of Poland or of the United Kingdom. ' However, many argue that regardless of what is outlined in the two articles there is still the question of whether or not the protocol has anything more than declaratory effect. As Craig and de Burca state, 'Article 1 declares that it 'does not extend ' the ability of the CJEU to review national measures for the compatibility of fundamental rights. ' however, we already know that in many cases the Charter influenced judgments of the CJEU before it was made legally
The most significant and challenge to the traditional view of parliamentary sovereignty was Britain’s membership of the European Community in 1972. The European Communities Act 1972 brought with it the requirement that European Law be given priority over domestic courts over conflicting issues of national law. This notion was a direct affront to parliamentary sovereignty, which required that if a later statute, contradicted and earlier statute, which sought to incorporate European Law into English Law, then the later statute should impliedly repeal the earlier statute. Therefore the European Communities act imposed a substantive limit on the legislative ability of subsequent Parliaments.
Hix, S. 2011. The EU as a new political system. In: Caramani, D. eds. 2011.Comparative Politics. Oxford: Oxford University Press.
Rackley, E (2010). In Conversation with Lord Justice Etherton: Revisiting the Case for a More Diverse Judiciary. Public Law
In his comparative study of the constitutional law, Ridley advanced that the United Kingdom, in fact, does not have a constitution. He mentioned the lack of distinction between the ‘constitutional law’ and ‘ordinary law’, as the formal can be easily changed as, and even repealed by, the latter. This is due to the fact that the British constitution distinguishes itself from other nation with an absence of a special legal mechanism to allow amendments in the constitutions; instead, constitutional rules in the United Kingdom are subsequently replaced or modified when an ordinary Act of Parliament is passed. This reflects the decisive role of parliament in the establishment and development of constitution in the United Kingdom. The legal doctrine of parliamentary sovereignty is, nonetheless, criticized by Ridley, as he believes the constitution should be prior to, “outside and above” the system of government, given that the power of government should be distributed by constitution. Adopting a different approach, Anthony King, by placing less emphasis on the prior existence of constitution, argued that in the context of British constitution, the government is the