Parliament Supremacy in the United Kingdom
Discuss about the Comparative Study Of Public-Sector Accounting.
The Parliament of the United Kingdom is sovereign and the most essential principle of British Constitutional law. Yet the primacy of European Union law is considered as the fundamental principle of the Constitutional law of the European Union, which implies that the EU law prevails over the laws of the individual Member States in case the laws contradict with each other. There are several controversies surrounding these two propositions, as it is understood that they compete with each other, claiming to be superior to the other. Consequently, it gave rise to a dilemma whether the United Kingdom membership in the European Union undermines the dominance of parliament sovereignty. It is said that the entry of the United Kingdom into the European Union has affected the parliament sovereignty as it caused a constitutional revolution where the British judges had transferred their loyalty to the EU from the Parliament, as the final lawmaker for the UK[1]. This essay paper aims at evaluating the consequence of the membership of the UK in the European Union and it shall examine whether the phenomenon of Brexit will provide a remedy to the Westminster.
The Parliament supremacy in the United Kingdom is considered as the most fundamental aspect of the British legal framework that confers upon the Parliament the power to legislate laws. In the words of Dicey, this legislative power conferred upon the Parliament is the pillar of the British constitution that is empowered to make or unmake any legislation. Further, no body or person in the law of England shall be entitled to set aside or supersede the legislation enacted by the Parliament. However, this conventional concept of supremacy has been significantly undermined due to the membership of the United Kingdom in European Union (EU), which is evident from the change in the balance of power within the UK Constitution. With the development in the common laws and the enactment of the Human Rights Act 1998, the concept of parliamentary supremacy has diminished altogether[2].
The enactment of the European Communities Act 1972 conferred dominant power upon the EU in the United Kingdom. The Parliament is responsible for permitting the Court of Justice of the European Union (CJEU) to supersede the UK law to ensure compliance of the UK with the EU law with respect to all the competent areas. In a Dutch case of Van Gen en Loss [1963][3] that was related to EU law, the CJEU held that the “member states have limited their sovereignty rights, albeit within limited fields and have created a body of law which binds both their nationals and themselves”. This decision establishes the primacy of the EU law over the national law of its Member States. This was further established in the Factortame case, where a part of the British Parliament was not applied because it was not in competence with the EU law.
Enactment of the European Communities Act 1972
It was argued in the Factortame case that with the enactment of the European Communities Act[4], the British Parliament voluntarily accepted the restriction upon the sovereignty of its laws that was implied by the EU membership. The passing of this statute implied that the Parliament is free to accept the supremacy of the EU laws over its own legislations. However, the other side of this implication must be that the Parliament is equally at liberty to refuse any EU law to prevail over its own legislations. This would be possible either by repealing the European Communities Act [1972] or by giving more priority to only selective pieces of domestic legislation over the EU law in case of any conflict between the national and the EU laws. As per section [18] of the European Union Act 2011, it is established that the EU Law shall be in force within the UK solely because of the enactment of the European Communities Act 1972 by the UK Parliament[5].
According to Cini ( 2016), there is a dilemma with respect to precedence of the EU law over the national law of the United Kingdom in case there is a divergence between the national laws and the EU laws. The issue arose in the case of Costa v ENEL [1964][6] where disagreement arose with respect to the application of Italian law and Treaty provisions according to which the Italian law would take dominance. The ECJ states that the response within the laws of each Member State of provisions that have a “Community Source” cannot give inclination to a unilateral and subsequent measure. However, Cini (2016) stated that this does not imply that the laws made under the regulation of a EU law is no way inferior to any national law as was established in Internationale Handelsgesellschaft [1970][7] case where the ECJ held that the regulation of EU, which was contradictory with the Constitution of German, superseded the German law.
Young et al., (2016) stated that the ECJ has pointed out the manner in which courts must approach any issues relating to conflicting laws and held that the domestic courts are obligated to enforce the EU laws into their respective countries. Further, the judges of the national courts are also barred from giving effect to national laws over the EU laws in case of any disagreement between the EU laws and the respective state laws. In regards to the consequences resulting from the membership of the UK in the European Union, it can be argued that UK has surrendered its sovereignty and facilitated the EU to penetrate and weaken the Parliament. This is evident from the fact that prior to the membership with the EU and enactment of the 1972 Act, particularly ECJ had clearly mentioned through its laws that it was empowered to regulate in the interests of the EU altogether. This signifies that the UK became a member of the EU with adequate knowledge about the consequences of such membership and the impact it would have on its parliamentary sovereignty principle.
Precedence of EU law over national law
Nevertheless, McCornick (2017) states that it is important to have regards to the manner in which it can be said that the UK has restricted its parliamentary sovereignty. In this context, the appropriate term used is ‘supranationalism’, which refers to a form of multi-national approach with respect to the decision-making process in the EU. McCornick (2017) further elaborates the point that the national government has not completely given up its sovereign powers to the EU power[8]. The EU is said to have certain specified goals and principles that are stipulated in the treaties. The establishment of EU institutions like the ECJ exemplifies that these are established to achieve the stipulated goals and principles as well as regulate their implementation. This signifies that the EU is empowered to function to the extent of such stipulated goals and principles, which further means that the powers of the European Union are itself restricted by the concept of supranationalism. In other words, the EU cannot act beyond the areas that have been agreed by its member states.
As a result, this establishes the fact that the national governments of the member states including UK retain their sovereignty to a certain extent and it plays the role of the law maker of the respective countries. Hodson (2017) argues that even if the Member states like UK had given up the some of its powers, it is not completely wrong to say that the Parliament of the country cannot be said to be the ultimate law-maker of the country[9]. This is because as long as the EU laws supersede the national laws owing to the membership of the country with the EU, the EU laws shall be deemed to have undermined the UK parliamentary sovereignty principle. This has been clearly established in the case of R v Secretary of State for Transport, ex parte Factortame [1990][10]. In this case, the issue was related to a UK law that was enacted to exercise control over the nationality of anglers who are entitled to fish as per the terms of the Merchant Fishing Act 1988. The ECJ granted the claim of the anglers to be compensated because of the disentitlement of their right to fish on the ground that the anglers complied with the stipulated conditions of the statute.
Fleming (2016) contradicts and states that EU Regulations do not always give rise to UK laws despite being directly applicable to the country. In regards to the issue related to sovereignty, it can be argued that when a law emanates from the EU, it is wisdom subjected to any evaluation and cannot be altered. Consequently, the connection between the people who vote and the people who passes legislation is weak, which undermines the very foundation of the notion of democracy. However, in reality, these laws cannot be said to have been imposed upon the UK as the British Ministers have always been an active participant in the discussions that have led to the evolution of such laws. The British government has negotiated the provisions and the British peers and officials have discussed and undergone several debates before many of the laws have been enacted by the British parliament.
Controversies Surrounding Parliament Supremacy and EU Law
The fact that the UK parliamentary sovereignty has not been completely affected due to the partnership with the EU is evident from the decision in The Administrative court in the Thoburn case[11]. The decision developed the notion that the enactment of the 1972 statute is a constitutional statute which implies that such legislation shall prevail over other legislations provided such legislations expressly supersedes the legislation of 1972. Allison (2017) elaborates the point by stating that the significance attached to the EU laws by the Act 1972 confirms the prevalence of the EU law over any other UK legislations in case of conflict, unless such legislation expressly states the otherwise. The UK Parliament retains its sovereignty in the senses that its is empowered to override any of the EU laws provided it revokes the prevalence given to EU laws by the 1972 Act. However, the Court shall only consider the Parliament to have overridden the EU laws only if the same is expressly and clearly stipulated by the Parliament. Therefore, it can be said that the extent to which the EU laws can supersede the UK laws is dependent on the interpretation of the Legislations of the parliament thus, signifying that the matters remain within the control of the UK Parliament[12].
The fact that Parliament retains its sovereignty is evident from the decision given in Miller’s case[13]. It was held in the case that Parliament might claim that domestic legislations can supersede the EU Law in respect of certain UK legislations. This is because of the default primacy that is enjoyed by the EU law within the UK due to the power conferred upon the EU with the enactment of the ACT of 1972. However, the parliament is still empowered to amend, repeal or override the EU laws.
In this context, Mitchell (2015) states that UK has played a significant role in making EU more liberal financially and has contributed in the expansion of the EU thus, strengthening the global role-played by the EU[14]. The decision of the UK to depart from the EU partnership was undertaken with the sole objective to reassert the national sovereignty through the UK Parliament. As per [Article 50] of the Treaty of Lisbon sets out the legal procedure that must be complied with by a state if it wishes to withdraw from the EU membership. After the UK government evokes [Article 50], the UK and EU will have to negotiate a withdrawal agreement within two years from the date since which [Article 50] has been evoked by the UK. However, departure from the EU might have an adverse impact on the Westminster as it might give rise to political commotion and uncertainty[15].
Impact of UK membership with EU on Parliamentary Sovereignty Principle
Such withdrawal process from the membership of EU shall involve major political decisions as well as international negotiations within the country. Such decisions and negotiations shall be related to terms of withdrawal. The terms of the future relationship between EU and UK shall encompass issues like economic and trade relations. There has been controversies regarding the proposal of the Scotland government which wishes to remain in the EU single market despite the departure of Britain (Brexit)[16]. It is clear that the UK government abides by the Westminster perspective according to which the relations maintained with the EU are matters of foreign policy, hence, the UK government shall be negotiating about the Brexit issue alone and since Westminster is a sovereign parliament, it may overrule any opposition at the devolved level. Therefore, the decision to depart from EU was taken by the UK as an entire country; hence, it must leave together.
The withdrawal procedure of the Brexit shall have affected the Westminster, as Westminster will oversee the negotiations that will take place between the EU and the UK with respect to trade relations. It will further be engaged in reviewing the huge body of law derived from the EU membership. Since majority of the UK law has derived from EU Law, Brexit would require reviewing of this law to determine the laws to be amended, kept or discarded. The extent to which legislative review is necessitated subsequent to the departure of the EU may give rise to dilemmas. The most crucial issue that is associated with the Brexit is related to the repatriation of sovereignty. Allison (2017) asserts that if the Act of 1972 is repealed, though it will establish that the UK parliament retains its sovereignty in law making for its nation but it shall involve the UK Parliament in developing subsequent legislations. However, developing such subsequent legislations might overburden the capacity of the UK Parliament to ensure its efficacy in exercising effective control.
According to Zuleeg (2016), this process could be made easier or less complicated, by incorporating a legal provision that will permit the government to repeal or amend the primary legislation using the secondary or subsequent legislation often, without subjecting it to further parliamentary assessment. However, this procedure might be subjected to controversies, nevertheless, in the context of Brexit, it could be used to eliminate fundamental rights with less parliamentary assessment which might distort the concept of parliamentary sovereignty altogether[17].
The concept of Supranationalism
In order to address this issue, the House of Commons held that the repealing of the 1972 Act might take place by incorporating saving provisions to maintain regulations. However, Evans (2016) argues that Brexit will further lead to a further deliberation of power in the hands of the civil servants and ministers who will become the ultimate decider for determining the laws that must be amended or discarded at the cost of the UK Parliament. Evans (2016) further states that it is very unlikely that Brexit would have any significant impact on Westminster in the long run and that the structures of the parliamentary institutions will not undergo any significant changes[18]. Nevertheless, it will depend on the future relationship of the UK with the EU. For instance, if the UK remained within a European Economic Area, it would have to comply with several EU laws and regulations that would require the EU Committee to continue with the evaluation of EU law. Nevertheless, it is equally possible that EU Committees are no longer considered as necessary and Brexit shall be presumed to lead to more domestic legislation and domestic policy-making, which may further enhance the work load of the parliament in the form of scrutinisation and establishment of new select committees for such new legislations.
From the above discussion, it can be inferred that the government is unaware of what is required from the legislation or what its expected outcome from Brexit is. The UK government claimed that it intended to transform and embed EU law into its domestic legislation to ensure legal prolongation[19]. The attempt made by the UK government gives rise to uncertainty with respect to the manner in which the law of the county shall operate. There is lack of certainty with respect to matters like the amount of importance to be attached to the CJEU authorities by the UK courts subsequent to Brexit, under circumstances when the government intends to represent areas of EU law ensuring its compatibility with the EU laws. The drafting of the “EU Withdrawal Bill “ clarifies the intention of the UK government to minimize the effect of the principles of EU law to nothing but mere interpretative instruments as a means to demonstrate that the nation has retained EU laws in its legislations.
However, to consider that the EU weakens Parliamentary sovereignty itself amounts to dejection of the very foundation of British Constitutional law[20]. Legislative sovereignty in Parliament cannot be challenged and neither any parliament can limit the sovereignty of future parliaments which makes the delegation of power to the EU voluntary and eventually retractable. Although in certain cases, amending or altering certain legislation may be subjected to economic and political expenses, but irrespective of such expenses, the Parliament is empowered to amend or repeal any of its legislation without any restrictions. Nevertheless, there are possibilities that the problems associated with the incompatibility between the superiority of the EU law and sovereignty of the UK law may be reconciled by way of identifying and accepting that these two laws operate in different legal aspects[21]. These two different spheres might come into contact with each other but under such circumstances Parliament should be perceived as a sovereign with respect to matters related to UK law and EU superiority principle is binding upon the UK as a matter of EU, hence, an international law.
Role of National Governments in Decision Making
Thus, while UK as a state is bound by the obligations stipulated in the international Treaties to comply with EU laws, it does not imply that it shall be denied as a domestic legal principle. Therefore, whether EU membership is beneficial to Britain or not is a matter subject to assessments but based on the literal relationship between the two, it can be rightly said that despite powers conferred upon the EU by UK legislation, its membership does not completely weaken the Westminster’s parliamentary sovereignty principle.
Allison, John WF. “The Westminster Parliament’s Formal Sovereignty in Britain and Europe from a Historical Perspective.” Giornale di storia costituzionale 34.2 (2017): 57-71.
Cini, Michelle, and Nieves Pérez-Solórzano. “How Much of a Threat does the “Brexit” Referendum Pose for the European Union.” (2016).
Cini, Michelle. European union politics. Oxford University Press, 2016.
European Communities Act 1972
European Union Act 2011 at section [18]
Evans, H. “Evidence on ‘Brexit and Financial Services’ to House of Lords Select Committee on the European Union Financial Affairs Sub-Committee, 12 October.” (2016).
Flaminio Costa v ENEL (1964) Case 6/64
Fleming, N. C. “Conquest, Empire, and the Struggle for Supremacy.” War in History 23.2 (2016): 251-256.
Hodson, Dermot. Institutions of the European Union. Oxford University Press, 2017.
Human Rights Act 1998
Hyndman, Noel, and Mariannunziata Liguori. “Achieving radical change: a comparative study of public-sector accounting in Westminster and Scotland.” Accounting, Auditing & Accountability Journal just-accepted (2018): 00-00.
Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (1970) Case 11/70
Keating, Michael. “Why No Federalism in the United Kingdom?.” Understanding Federalism and Federation (2015): 177.
McCormick, John. Understanding the European Union: a concise introduction. Palgrave, 2017.
Mitchell, Justine Mitchell. “Parliamentary supremacy in the UK since joining the European Union.” Diffusion-The UCLan Journal of Undergraduate Research 3.1 (2015).
R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5
R v Secretary of State for Transport, ex parte Factortame [1990] UKHL 13
Thoburn v Sunderland City Council [2002] EWHC 195 (Admin),, QB 151,, 3 WLR 247,, 4 All ER 156
Van Gen en Loss [1963] v Nederlandse Administratie der Belastingen (1963) Case 26/62
Young, A., et al. “European Union law and the UK: The juridification of the UK Constitution.” (2016).
Zuleeg, Fabian. “What kind of Brexit? EPC Commentary, 4 November 2016.” (2016).
[1]Cini, Michelle. European union politics. Oxford University Press, 2016.
[2] Human Rights Act 1998
[3] Van Gen en Loss [1963] v Nederlandse Administratie der Belastingen (1963) Case 26/62
[4] European Communities Act 1972
[5] European Union Act 2011 at section [18]
[6] Flaminio Costa v ENEL (1964) Case 6/64
[7]Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (1970) Case 11/70
[8] McCormick, John. Understanding the European Union: a concise introduction. Palgrave, 2017.
[9] Hodson, Dermot. Institutions of the European Union. Oxford University Press, 2017.
[10] R v Secretary of State for Transport, ex parte Factortame [1990] UKHL 13
[11] Thoburn v Sunderland City Council [2002] EWHC 195 (Admin),, QB 151,, 3 WLR 247,, 4 All ER 156
[12] Allison, John WF. “The Westminster Parliament’s Formal Sovereignty in Britain and Europe from a Historical Perspective.” Giornale di storia costituzionale 34.2 (2017): 57-71.
[13] R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5
[14] Mitchell, Justine Mitchell. “Parliamentary supremacy in the UK since joining the European Union.” Diffusion-The UCLan Journal of Undergraduate Research 3.1 (2015).
[15]Hyndman, Noel, and Mariannunziata Liguori. “Achieving radical change: a comparative study of public-sector accounting in Westminster and Scotland.” Accounting, Auditing & Accountability Journal just-accepted (2018): 00-00.
[16] Cini, Michelle, and Nieves Pérez-Solórzano. “How Much of a Threat does the “Brexit” Referendum Pose for the European Union.” (2016).
[17] Evans, H. “Evidence on ‘Brexit and Financial Services’ to House of Lords Select Committee on the European Union Financial Affairs Sub-Committee, 12 October.” (2016).
[18] Zuleeg, Fabian. “What kind of Brexit? EPC Commentary, 4 November 2016.” (2016).
[19] Young, A., et al. “European Union law and the UK: The juridification of the UK Constitution.” (2016).
[20]Keating, Michael. “Why No Federalism in the United Kingdom?.” Understanding Federalism and Federation (2015): 177.
[21] Fleming, N. C. “Conquest, Empire, and the Struggle for Supremacy.” War in History 23.2 (2016): 251-256.
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