Parliamentary Sovereignty and Europe’s Limitation on It

Parliamentary supremacy is the idea that parliament is the supreme law making body in the UK. The authority for this power stems from Article IX of the 1689 Bill of Rights which states that the freedom of speech, debates and proceedings in parliament are not to be impeached or questioned in any court or outside of parliament. The principle of parliamentary sovereignty was further defined by Dicey in 1885 who explained that the law making powers of parliament are unlimited, the validity of parliament and its laws cannot be questioned and that it is impossible to entrench an Act of Parliament limiting the law making power of future parliaments.

There are numerous limitations on parliamentary sovereignty today such as the devolution of law making powers to Scotland and Wales and certain conditions stipulated in the Human Rights Act 1998, although the major limitation comes from the EU. After the UK joined the EU in 1973, the Treaty of Rome 1957 and further amendment treaties and secondary legislation were implemented into UK law by the European Communities Act (1972). S(2)(1) of the ECA states all provisions of EU law have force in the UK and s(2)(4) states that all UK Acts of Parliament are directly applicable to European law, and should be interpreted as such. EU law now prevails over UK law; parliament is not sovereign. This was confirmed in the ECJ ruling in Costa v Enel (1964) where it was declared that ‘the transfer of a country from their domestic legal system to the community legal system of the rights and obligations arising under the Treaty carries with it permanent limitation of their sovereign rights against which a subsequent unilateral Act incompatible with the concept of the community cannot prevail’.

The greatest challenge to parliamentary sovereignty was in the Ex Parte Factortame No 2 (1991) case where the European Court of Justice held that domestic courts must suspend domestic legislation whilst waiting for a ruling from the ECJ as to whether the domestic legislation contravenes European community law. This case was regarding the rights of Spanish fisherman to fish in British water as the UK’s protectionist Merchant Shipping Act 1988 was contrary to community law.

By virtue of the ECA and 1991 ECJ ruling, parliamentary sovereignty is limited by all sources of EU law. In 1993, the Department of Trade estimated that 1/3rd of existing legislation has been enacted to implement EU law. It is legally possible that the UK has surrendered sovereignty to European institutions. However in view of the doctrine of parliamentary supremacy the European Community Act can be repealed, as the law making power of parliament cannot be entrenched and legislation enforced by the ECA is therefore technically invalid. This is unlikely for as long as the UK has economic ties with Europe and stays in the EU.

 

By Joe Timmins

Leave a Reply

Your email address will not be published. Required fields are marked *