The United Kingdom’s Acceptance of the Doctrine of Supremacy; Parliamentary Sovereignty in Question

The United Kingdom’s Acceptance of the Doctrine of Supremacy;

Parliamentary Sovereignty in Question

Queeny

Abstract

 

The European Court of Justice maintains a guiding principle of Supremacy. Accepted in both monist and dualist governance structures throughout the European Union, the Doctrine of Supremacy is directly effective in each Member State. In this paper, I will focus on the dualist acceptance of the Doctrine of Supremacy within the British Parliament. Through emphasizing the tradition of British Parliamentary Sovereignty as operating in a duality with the Doctrine of Supremacy, I will frame the ensuing contention within British legislation. By depicting the recognition of the Doctrine of Supremacy as the first step to dualism, I will posit that interpretation of EU Law as the main condition of contention. Through analyzing interpretation of EU law through the scope of it’s judicial application, I will establish that dualism exists due to continued British Parliamentary Sovereignty. I will then critically analyze the system of dualism in its theoretical relationship to the concept of a European Grundnorm, and its legislative feasibility for continued British Parliamentary Sovereignty.

 

Introduction

Accession of the United Kingdom to the European Union under the European Communities Act of 1972 subordinated British legislation, by making European legislation “enforced, allowed and followed.”[1] The ECA negotiated supranational power to the European Court of Justice through ratification of the British Parliament[2]. By accepting the ECJ as a regulatory body[3], the ECA made traditional British Parliamentary Sovereignty problematic, by establishing Union law as secondary legislation[4] on any “legal proceedings… to the effect of the [Community] Treaties.”[5] Given section 2(2) of the ECA, wherein the United Kingdom courts must recognize, interpret and apply the European Union Treaties within national courts, how has traditional British Parliamentary Sovereignty accepted the “new legal order”[6] of the EU’s Supremacy Doctrine?

Without a codified constitution, the UK allows Parliamentary Sovereignty in all legal matters[7]. Ultimate legal power of the UK Parliament is at odds with supremacy of EU law, because of the primacy they both imply. Parliamentary Sovereignty necessitated Parliament’s ratification the ECA, making the powers of the EU’s Doctrine of Supremacy contingent upon Parliamentary legislation. Therefore, Parliamentary Sovereignty is reified as “continued sovereignty”[8] under the ECA, due to the power for Parliament to withdraw from the Union at will[9]. Foundation for continued sovereignty of British Parliament lies in the recognition, interpretation and application of the duality of power implied in the UK relationship with the EU. The UK operates under a system of dualist governance, respecting both UK and EU powers, in order to solve the problem of British acceptance of the EU’s Supremacy Doctrine.

Dualist Governance and Acceptance of the Supremacy Doctrine

A system of dualism involves a two-stage process of legislation. In the context of EU and UK relations, the dualism rests between the Doctrine of Supremacy, which allows UK citizens to enjoy EU rights, and the UK Parliamentary Sovereignty, which allows the UK to remain in power of all legislation. These two competing hierarchies maintain a dual relationship in respect to legislation, in that they both have binding power. Sectoral convergence to Union Treaty articles establishes a growing range of legislature to which the Doctrine of Supremacy applies. In this fluidity of Union regionalization, the UK has confirmed Parliamentary Sovereignty through recognition of integration of EU law through Parliament, application of EU law by national courts under the jurisdiction of Parliament and interpretation of EU law through Parliament-established judicial order.

 

UK Parliament Perspective

The principle nature of EU law, known as the Doctrine of Supremacy, is recognized by the UK as legitimate[10], is applied by Parliament[11] and is effective through interpretation by British courts[12] is considered to exist in a duality of power with the British Parliament, because of Parliament’s regulatory power to withdraw from the Union[13]. This Parliamentary control over the relationship of the Doctrine of Supremacy is known as “continued sovereignty”[14]. It is the basic argument of the tradition of Parliamentary Supremacy, in relation to international treaties and principles, like the Doctrine of Supremacy[15]. Dualism arises from this argument, as the recognition, integration and application of the treaty within a sovereign legislature.

 

European Court of Justice Perspective

Through a historical precedence, establishing the Doctrine of Supremacy in EU law, the ECJ set out three conditions, whereby variance in interpretations of prevailing law are resolved: First, that contentious national law becomes “automatically inapplicable”[16] upon Community law’s entrance in to force.[17]; Second, that Community law cannot be interrogated by national courts[18]; Third, that citizens and corporations may enjoy Community law rights within national courts[19]. The ECJ uses these conditions to impose supranational governance- the Doctrine of Supremacy.

The UK parallels these interpretations of the Doctrine of Supremacy in a system of dualism, which harmonizes EU law and the UK Parliament. Dualism is established because of recognition of competing supremacies within UK governance[20], which are resolved through interpretation of Supremacy by the UK Parliament[21], and the application of EU law in areas of UK Parliamentary contention[22].

 

Recognition of Competing Supremacies

After the ratification of the European Communities Act in 1972, and accession to the European Union in 1973[23], the Case of Bulmer v. Bollinger (1974) gave clarification[24] to the scope of problems the UK faced in accepting the Doctrine of Supremacy. Lord Denning famously stated,

The Treaty is quite unlike any of the enactments to which we have become accustomed … It lays down general principles. It expresses its aim and purposes. … But it lacks precision. It uses words and phrases without defining what they mean. A British lawyer would look for an interpretation clause, but he would look in vain.”[25]

By accepting the Doctrine of Supremacy under dualist governance with Parliamentary Sovereignty, the problem of interpretation is posited. How does a polity operate, given the necessity to interpret laws from other powers? Lord Denning continues on,

“What are the British courts to do when they are faced with a problem of interpretation? They must follow the European pattern… They must look to the purpose and intent … They must divine the spirit of the Treaty and gain inspiration from it. If they find a gap, they must fill it as best they can.”[26]

As defined stare decisis by the ECJ, the UK’s “problem of interpretation,” must be resolved through eliminating variance in of Community law. Lord Denning understands this resolution as a movement towards acceptance of EU Law, and posits an understanding by the British, in order to interpret EU law. Bulmer v. Bollinger therefore defines the manner in which the UK accepts the Doctrine of Supremacy upon ratification of the ECA; British courts must recognize principles of EU law, in light of British tradition. Bulmer v. Bollinger differentiates the areas of the Supremacy Doctrine’s competence from the direct effectiveness of that law within the British polity. This differentiation recognizes a dualist balance in the problem of interpreting EU law.

Application of the Doctrine of Supremacy

The UK Parliament allows EU law to be directly effective within national court legislation. In this sense, recognition of the Doctrine of Supremacy under the tradition of Parliamentary Supremacy leads to the application of EU law to provisional legislation. Contention between EU law and UK Acts of Parliament are reified by the relationship of dualism, which can be seen as established through the application of both the Doctrine of Supremacy and Parliamentary Sovereignty in the case of Factortame Ltd v. Secretary of State for Transport [27]. Factortame questioned the UK’s legislation, which cited an Act established by the same Parliament[28] as its legal basis. Despite the citation of an Act of Parliament, the ECJ ruled against the House of Lords legislation, which directly violated the tradition of Parliamentary Sovereignty as explained by Albert VennDicey,

No person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament.”[29]

Through the primacy of ECJ legislation granting interim relief, this case became definitive of the Doctrine of Supremacy’s powers against the will of Parliament. In this case, Lord Goff notably says that, “As a matter of Community law, interim relief had to be available in principle against the Crown.”[30]

The ECJ ruled in accordance with the ECJ ruling that contentious law becomes inapplicable under the Doctrine of Supremacy[31], and the Supreme Court Act of 1981. The Supreme Court Act of 1981 established in the case of Factortame, that the British Parliament had not correctly interpreted the EU Directive when making the legislation preempting the decision of Factortame. By defining the extent to which the Doctrine of Supremacy could alter a decision by Parliament, Factortame did not further restrict Parliamentary Sovereignty beyond the reification of the ECA.

Parliamentary Sovereignty was maintained on a dualistic level to the Doctrine of Supremacy, in that the interpretation of EU Law was at issue. Dualism in application of the Doctrine of Supremacy stands a questionable forefront in Factortame, because of the removal of an Act of Parliament. Dualism is confirmed in Factortame because the ECJ interprets the application of the Doctrine of Supremacy as a remedy mechanism for such variances in interpretation[32]. The Doctrine of Supremacy is therefore contextually applied within the ECA, under the British Parliament’s sovereign power.

Interpretation of the Doctrine of Supremacy

Through a disambiguation in the application process for EU law in British courts, the Factortame proceedings illuminate the Doctrine of Supremacy’s force upon UK legislation, and also the duality of interpretation between the ECJ and the UK Parliament. Specified under the ECA section 3(1), interpretation of the EU Treaty law must be done within the UK courts, or referred through Article 267 Treaty of the Functioning European Union to the ECJ. The ECA sets precedence for interpretation by the national courts, in light of Article 177 of the Treaty of Rome, which encourages harmonization of interpretation of EU law among all member states.

Unlike the interpretive procedures established and adjusted since Factortame, the Thoburn v. Sunderland City Council[33] case posits a question of Parliamentary Supremacy in the interpretive process. In the case of Thoburn, the European Charter on Human Rights was put in to question, as a determination of biased judicial proceedings regarding the application for appeal to the ECJ. Despite Thoburn appeal to the ECJ, claiming his referential rights had been violated, the ECJ did not make jurisdiction on the case of Thoburn, leaving the UK jurisdiction to be sovereign.  Stated by victorious party, the Sunderland City Council,

EU law should be seen as having been entrenched, rather than merely incorporated, into domestic law, by virtue of a principle of EU law which was independent of constitutional principles of national law, such as dualism.”[34]

This case represents the struggle of duality between UK Parliament’s sovereignty to interpret EU law under the Doctrine of Supremacy. The Doctrine of Supremacy was not applied to the interpretation in Thoburn, because of the EU’s Principle of Legal Certainty. This Principle is inherent to the operation of dualism in the UK, because it grants confidence to the national courts, unless “It appears, on the basis of objective, relevant and consistent evidence, to have been adopted with the exclusive or main purpose of achieving any end other than those stated.”[35]

In response to clarification in Factortame of the interpretive power of the judicial officer and House of Lords, and the assumptions in Thoburn about the judicial bias towards UK Parliamentary Sovereignty, the ECHR contended that the UK did not sufficiently separate powers for interpretation of EU law[36][37]. In an effort to divorce the possibility of biased elections for a judiciary board for interpretation of EU law, the UK passed the Constitutional Reform Act in 2005[38]. Through creating an independent judiciary[39], a new Supreme Court[40] and a new system for the appointment of judges[41], the CRA restructured the judicial pattern for interpretation of EU law.

By ushering in a separation of powers, the UK maintains its duality through substantialzing the judicial interpretation methods under EU law. The Doctrine of Supremacy is adhered to, without a change in the Parliamentary make-up. Judicial institutions, which support Acts of Parliament, are acting on behest of Parliament’s will to follow the ECA. With extensive interpretive power given to the judicial system, and a set of common laws that the ECHA sets out under the Human Rights Act of 1998, the question of continued sovereignty of Parliament is posited.

Continued Sovereignty and Dualist Governance in the United Kingdom

 

In the case of Pickin v. British Railways Board[42],  the UK defines the purpose of Parliamentary Sovereignty, in a context of it’s validity within British legislation. Through initially defining the British tradition of Parliamentary Sovereignty, Pickin sought to define which body within the British polity, be it the House of Lords or the Parliament itself, should interpret a body of law for the purpose of application. Citing the Act of Parliament in 1911[43]and the subsequent Interpretation Act of 1978[44], Pickin established that Parliamentary acts cannot be questioned by the House of Lords, but can be interpreted through them. This interpretation procedure gave rise to the idea that, without a referential procedure from the courts to Parliament, the British courts must rely on a sort of European Union Grundnorm[45]. Recognition of a European Grundnorm would inherently restrict Parliamentary Sovereignty, because of its directly effective nature[46], without legislation through Parliament.

In an effort to alleviate this contention between interpretation by the courts and continued sovereignty, the EU Bill became an Act of Parliament on 19 July 2011,. The EU Bill sought to legalize the political agenda of dualism, and establish a referential procedure from the UK courts towards Parliament, in order to avoid a divergence towards the formation of EU law as Grundnorm, Primacy of EU law in this sense would negate Parliamentary Sovereignty of the UK, as explained by Pickins v. British Railways Board. Clause 18 of the EU Bill legitimizes dualist governance within the United Kingdom, which seeks to affirm Parliamentary Sovereignty, by acknowledging that the UK allows EU law to operate within it. Citing the case of Thoburn[47], in which it is made clear that EU law takes affect through an Act of Parliament, the EU Bill affirms UK dualism.

“Status of EU law dependent on continuing statutory basis:

By virtue of the European Communities Act 1972 directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognized and available in law in the United Kingdom.”[48]

Debate surrounding Clause 18 of the EU Bill, known as the ‘Duality Clause’[49], cites the legal inapplicability of the EU Bill to any further governance beyond the current Parliament. Dualism is also called in to question by the European Scrutiny Committee Report of 2011, when suggested that the EU Bill is itself binding Parliamentary Sovereignty, by restricting the future Parliaments to dualist governance. This would undermine the tradition of Parliamentary Sovereignty, as historically defined by Albert Venn Dicey, in that “Parliament is not bound by its predecessor.”[50] In response, the UK Government stated that the case for dualism is made merely in hope that “the Bill becomes part of the accepted constitutional framework of this country.”[51]

 

Conclusion

 

Attempts to establish a system of dualism undergo scrutiny from angles of its theoretical validity in relation to European Grundnorms, and its legal feasibility in becoming a British Parliamentary Tradition. Since the recognition of EU law in British legislation through the ECA, the UK has accepted the Doctrine of Supremacy through a means of dualist governance between it and the Parliament. Dualism is established through the continued sovereignty of UK Parliament, by way of recognition of the Doctrine of Supremacy, and then the application and interpretation of the Doctrine via British Parliament. Acceptance of the Doctrine of Supremacy by the UK through dualism creates a disjointed nature in interpretation of EU law, but maintains validity under continuous judicial reforms.

Bibliography

Arangonés, Jay. “Regina v. Secretary of State for Transport Ex Parte Factortame Ltd.: The :Limits of Parliamentary Sovereignty and the Rule of Community Law.” Fordham International Law Journal 14.3 (1990): 778-819. Print.

Dicey, Albert Venn. Introduction to the Study of the Law of the Constitution. London: Macmillan, 1959. Print.

Craig, Paul. “Britain in the European Union.” The Changing Constitution. Ed. Jeffrey L. Jowell and Dawn Oliver. Oxford: Oxford UP, 2007. 92. Print.

Jowell, The Rule of Law Today, in THE CHANGING CONSTITUTION 19 (J. Jowell & D. Oliver eds. 1989).

Kaczorowsky, Alina (2008). European Union law. Taylor & Francis. pp. 232. ISBN 978-0-415-44797-3.

Lakin, Stuart (2008). “Debunking the idea of parliamentary sovereignty: the controlling factor of legality in the British constitution”. Oxford Journal of Legal Studies (Oxford University Press)

McAuslan, Patrick, and John F. McEldowney. Law, Legitimacy, and the Constitution: Essays Marking the Centenary of Dicey’s Law of the Constitution. London: Sweet & Maxwell, 1985. Print.

“Official Journal of the European Union.” EUR-Lex. N.p., n.d. Web. 20 Nov. 2012.

T. Allan, “Parliamentary Sovereignty: Lord Denning´s Dexterous Revolution” (1983)

“The EU Bill and Parliamentary Sovereignty” European Scrutiny Committee. 2011. Section 6 (72)

Wade, The Basis of Legal Sovereignty, [1955] CAMBRIDGE L.J.,

Winterton, G, ‘The British Grundnorm: Parliamentary Supremacy Re-examined’ ( 1976) 92 Law Quarterly Review 591-617.

Statutes Cited

Act of Parliament. 1911. Section 3

Constituttional Reform Act. 2005. Sections 1, 3, 4.

ECHR. 2005. Article 6.

European Communities Act. 1972. Sections 1, 2, 3.

Merchant Shipping Act. 1988.

The EU Bill. 2011. All Sections.

The Interpretation Act.1978. Section 22(1).

UK Accession Treaty. 1972

Vienna Convention on the Law of Treaties. 1980. Vol. 1155, p. 331

 

Cases Cited

Amministrazione delle Finanze dello Stato v. Simmenthal. 1977.

Bulmer v. Bollinger. 1974.

Costa v. ENEL. 1964.

Factortame Ltd v Secretary of State for Transport [1990] : 2 [1991] : No3 [1992] : 4 [1996] : 5 [1999]

MacCarthys v Smith. 1981.

NV Algemene Transport-en Expeditie Ondernem- ing van Gend & Loos v. Nederlandse Administratie der Belastingen. 1962.

Pickin v British Railways Board. 1974.

Thoburn v. Sunderland City Council. 2002.


[1] European Communities Act 1972 S 1(2)

[2] Vienna Convention on the Law of Treaties. 1980. Vol. 1155, p. 331

[3] ECA 1972 S 1(2)

[4] ECA 1972 2(2)

[5] ECA 1972 3(1): [Community] added for clarification purposes.

[6] “Official Journal of the European Union.” EUR-Lex. Article 220. Web. 20 Nov. 2012.

[7] Dicey, Albert Venn. Introduction to the Study of the Law of the Constitution. London: Macmillan, 1959. Print.

[8] Craig, Paul. “Britain in the European Union.” The Changing Constitution. Ed. Jeffrey L. Jowell and Dawn Oliver. Oxford: Oxford UP, 2007. Print. pp. 96

[9] ibid.

[10] ECA 1972 S 1(2)

[11] The EU Bill. 2011. Para. 73

[12]Factortame Ltd v Secretary of State for Transport.

[13] The EU Bill. 2011. Para. 73

[14] Dicey, Albert Venn. Introduction to the Study of the Law of the Constitution. London: Macmillan, 1959. Print.

[15] MacCarthys v Smith. 1981.

[16] Amministrazione delle Finanze dello Stato v. Simmenthal. 1977.

[17] ibid.

[18] Costa v. ENEL. 1964.

[19] NV Algemene Transport-en Expeditie Ondernem- ing van Gend & Loos v. Nederlandse Administratie der Belastingen. 1962.

 

[20] Bulmer v. Bollinger. 1974.

[21]MacCarthys v Smith. 1981.

[22]Factortame Ltd v Secretary of State for Transport.

[23] UK Accession Treaty. 1972.

[24] T. Allan, “Parliamentary Sovereignty: Lord Denning´s Dexterous Revolution” (1983)

[25] Bulmer v. Bollinger. 1974.Ch. 401.

[26] ibid.

[27] Factortame Ltd  v Secretary of State for Transport.

[28] Merchant Shipping Act 1988

[29] Dicey, Albert Venn. Introduction to the Study of the Law of the Constitution. London: Macmillan, 1959. Print.

[30] Arangonés, Jay. “Regina v. Secretary of State for Transport Ex Parte Factortame Ltd.: The Limits of Parliamentary Sovereignty and the Rule of Community Law.” Fordham International Law Journal 14.3 (1990): 778-819. Print.

[31] Amministrazione delle Finanze dello Stato v. Simmenthal. 1977.

[32] Ibid.

[33] Thoburn v. Sunderland City Council. 2002.

[34] “The EU Bill and Parliamentary Sovereignty” European Scrutiny Committee. 2011. Section 6 (72)

[35] Kaczorowsky, Alina (2008). European Union law. Taylor & Francis. pp. 232.

[36] ECHR. 2005. Article 6 (paragraph 1)

[37] “UK Regulatory Materials Summaries” Strategic Research Unit. 1991. European Law Society.

[38] Constituttional Reform Act. 2005.

[39] ibid. Section 1.

[40] ibid. Section 3.

[41] Ibid. Section 4(2)

[42] Pickin v British Railways Board. 1974.

[43] Act of Parliament. 1911. Section 3

[44] The Interpretation Act.1978. Section 22(1).

[45] Craig, Paul. “Britain in the European Union.” The Changing Constitution. Ed. Jeffrey L. Jowell and Dawn Oliver. Oxford: Oxford UP, 2007. 92. Print.: Grundnorm is equivilant to British Common Law, as presented by Craig.

[46] Factortame Ltd (1) v Secretary of State for Transport [1990] : 2 [1991] : No3 [1992] : 4 [1996] : 5 [1999]

[47] The EU Bill. 2011. Para. 73

[48] The EU Bill. 2011. Clause 18.

[49] “Alliance of Liberals and Democrats for Europe.” Andrew Duff.  21 October 2011. The Financial Times.

[50] Dicey, Albert Venn. Introduction to the Study of the Law of the Constitution. London: Macmillan, 1959. Print.