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The the laws of the state unless and until

The
UK constitution exists as a dualist entity insofar as a treaty from another
legal body that is ratified by the domestic government cannot alter the laws of
the state unless and until it is incorporated into national law by legislation.
Consequently, under the European Communities Act 1972, Parliament voluntarily
gave effect to the UK’s obligations and duties under the former community and
now EU treaties in national law. Without it, EU law could not become part of
national law, and the statute is perhaps most usefully understood as a form of
conduit whose existence is sanctioned by parliament.

Whilst
the meaning of Parliamentary Sovereignty is largely axiomatic in describing the
freedom of the UK parliament to legislate, a brief unpacking of the phrase is
prudent in order that a clear metric is established against which
relevant case law can be considered. For present purposes, we will understand
it to reflect the ‘orthodox’ position advanced by Dicey and Wade. This held
simply that Parliament could legislate on anything anywhere, that parliament
could not bind itself and that no body could challenge the validity of an act
passed by parliament.1
This conception of sovereignty assumes a binary state of affairs in which
sovereignty either exists, or it does not, and arguably reflects the historical
context in which Dicey made his observations prior to the UK’s accession to the
Treaty of Rome. I will suggest through an examination of Factortame, Thoburn
and HS2 that a more appropriate understanding of Parliament’s supremacy is
reached through admitting certain qualifications derived through contemporary constitutional
exigencies. It will show the orthodoxy to have been preserved as an elaborate
legal fiction founded on technicalities by an establishment unwilling to
redefine the position of the UK constitution more comprehensively. It will
ultimately acknowledge how the rulings in thoburn and HS2 have prepared the
ground for a more useful position based on the common law as enabling a more
contextualised understanding of sovereignty.

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The essentials of the Factortame
2 case require little rehearsal; simplifying for brevity, it saw the
then House of Lords decide to ‘disapply’ a 1988 statute of the UK Parliament –
the Merchant Shipping Act – which may otherwise have frustrated the exercise of
rights recognized in EU law, specifically, the rights of a number of Spanish
fishermen to trawl in UK waters.2
In doing so, the court took itself to be acting on the authority of the
European Communities Act 1972 which provides, by section 2 (4), that European
Union Law is to prevail over inconsistent Acts of Parliament ‘passed or to be
passed’. At first glance, this seems to fly in the face of the orthodoxy
inasmuch as it constitutes a direct challenge to the validity of an act of
Parliament by another body and saw the parliament of 1972 bind its successor in
1988. Popular uproar over the perceived cession of sovereignty to Europe
through the disapplication of the later statute abounded, and in academic
circles Sir William Wade led the call to arms among those who saw this
development as little less than constitutional revolution.

Wade’s position
remains compelling in its recognition of the effect, in real terms, of the 1972
ECA statute. In his seminal piece ‘Evolution or revolution, he addresses
the  ‘construction’ view advanced by Sir
John laws, whose extrajudicial writings focus on the speech of Lord Bridge in
Factortame, in which Bridge noted:

“Factortame and EOC? demonstrate
what may be described as a devolution of legislative power to Europe, this is
no true devolution of sovereignty. In legal (though certainly not political)
terms, the organs of European legislation may in truth be described, for so
long as the Act of 1972 remains on the statute book, as Parliament’s delegates;
the law of Europe is not a higher-order law, because the limits which for the
time being it sets to the power of Parliament are at the grace of Parliament
itself.”

This stance, effectively
resting on the presumption that Parliament possesses the power to repeal the
ECA through express provision, is distinctly one-eyed in its failure to
comment, as Wade does, on the constitutional implications of subservience
during the period of membership. For, while ‘eschatologically the existence of
this power of repeal was true in the sense that Parliament would not be
deprived of its ultimate power to repeal the Act of 1972’3, this was not the concern
of MP’s; instead they were concerned with the real world implications for
Parliament passing legislation. In this regard, the contemporary government’s
assurances that sovereignty would not be ceded were true in an irrelevant sense
but not the relevant sense.4 Indeed, the practical
limitations of the situation created by ECA 1972 are obvious in that, for as
long as parliament agreed to its terms, it’s ability to pass domestic
legislation in the omnipotent, Diceyan understanding was clearly fettered.
Considered in light of the analogy offered by Vernon Bogdanor that ‘If I volunteer to surrender my
freedom with the proviso that I can at any time break free of my chains, it
would be odd to say that my freedom has not really been curtailed during the
period in which it is surrendered,’5
the construction camp may be seen too readily to turn a blind eye to practical
reality in their defence of the orthodoxy.

This is
crucial. The construction view, whilst correct in its assertion that domestic
law ultimately remains the authority by which EU law was incorporated, and by
implication is able to undo any such change, is reductive in its treatment of
the tangible influence of EU legislation, regardless of the fact that this
change was consensual. An examination of what the law is should necessarily
concern itself with what can and cannot be done in the moment at which it is
enacted, and an argument which seems to rely primarily on semantics as to ‘who
has the last say’ runs the risk of reducing sovereignty to an academic
plaything.

 

To a great
extent Factortame generated more questions than answers given that it concluded
on the paradoxical note that Parliament had managed to elevate EU law above its
own enactments with no real reconciliation to speak of. It is tempting on the
basis of this case alone to side with the account given by Wade which
ultimately categorises the recognition that EC law has overriding force as the
political response of national courts to the reality of EU membership.6  Yet an analysis of Thoburn will show that the
conclusion Wade reaches is problematic and distracts from a more textured mid-point
between irreconcilable ‘revolution’ and salvation of the orthodoxy.

 

The judgment in Thoburn was significant in its
treatment of implied repeal, a concept which held central focus because of the
conflict between S. 1(1) Weights and measures Act 1985 and the Units of Measurement
Regulations 1994 (made under section 2(2) of the European Communities Act 1972). The ratio in such cases as Vauxhall Estates Ltd
v Liverpool Corporation and Ellen Street Estates v Minister of Health are
accepted as establishing that implied repeal is a fixed part of constitutional
law. Yet Elliot maintains that drawing such a broad conclusion is to dislocate
the legal principle which they announced from the context within which they
were decided. Laws LJ deviated from this precedent in Thoburn by suggesting
that the operation of Implied Repeal be context sensitive. Crucially, the
judgment held that constitutional statutes – which category comprises legislation
that either “conditions the legal relationship between citizen and State
in some general, overarching manner” or “enlarges or diminishes the scope of
what we would now regard as fundamental constitutional
rights”‘ 7 – are to be treated
differently. Thus, Laws LJ explained that, “A constitutional statute can only be repealed, or
amended in a way which significantly
affects its provisions touching fundamental rights or otherwise the relation
between citizen and State, by
unambiguous words on
the face of the later statute.”

Cursory analyses will conclude that Thoburn
reinforces the dislocation between legal theory and political reality for
reasons outlined in Factortame. It is difficult to escape this entirely, but
the case breaks new ground in its suggestion that the position of parliament as
sovereign is not presented as immovable by virtue of legislative power being
construed of in dynamic, rather than static terms, by the court.7  Such an argument rests on the implication, as
voiced by Laws LJ, that parliament’s power to enact law is derived from the
common law8.
If this is accepted to be so, it follows that the scope of legislative power is
not fixed.9
Parliamentary Sovereignty thus expresses the conclusion that as the common law
evolves in light of changing circumstances, so the common law conditions upon
which Parliament’s legislative authority is held may change in turn.10

It is on this fluid conception of sovereignty that
the Thoburn view brings the deficiencies of Wade’s thesis into sharp relief. In
one respect, they advance a similar version of sovereignty insofar as the
courts occupy a pivotal role in both; Wade holds that parliament’s legislative
powers lie in the ‘keeping of the courts’ while the Administrative Court’s
analysis maintains that legislative authority is subject to those conditions
which are subject to the court through the common law. But it is in Wade’s
treatment of sovereignty as a political fact that his argument ‘insulates the
doctrine…from the usual processes whereby legal principles are evaluated, interpreted,
and, where necessary, reinvented in order that they are rendered appropriate in
light of a whole matrix of other considerations.’11
Indeed, in such a conception of sovereignty, the courts have no choice but to acquiesce if they are to act with constitutional
propriety. As Elliot articulates, the relationship described by the doctrine of
parliamentary sovereignty is immovable so long as the present constitutional
order subsists. It is for precisely this reason that Wade is forced to explain
any changes in the conditions upon which legislative authority is held in terms
of an extra- constitutional “revolution.

The judgment in HS2 confers similar value as an analytical device used
to overcome the increasing limitations of the orthodoxy. It served to reimagine
a yet more sophisticated conception of sovereignty, representing a development
of the approach in Thoburn in the attempts by Lord Mance and Lord Neuberger PSC
to move away from a ‘bright-line’ distinction between ordinary constitutional
legislation. Instead, a more nuanced approach was embraced holding that the
relationship between two pieces of legislation cannot be determined through
mere categorisation. Its merit lies in placing emphasis upon the idea of
constitutional principles as distinct from statutes; the implication is that
the ‘degree of constitutional fundamentality ascribed to any given measure is a
function of the significance of the constitutional arrangement or the normative
importance of the value it embodies, distinct from any particular
constitutional significance ascribed to the legislative instrument.’   

More than this though, where Wade’s argument is circumscribed to a
binary analysis of sovereignty, HS2 shows the primacy accorded to EU law under
the UK’s constitutional settlement to be a qualified one. In other words, it
demonstrates that theory and reality can be reconciled to some degree, but does
so without recourse to the familiar avenue of explicit legislative derogation.
Rather, Elliot suggests that HS2 presents a second type of qualification ‘that
has hitherto been thought to apply only in legal systems possessing
hierarchically superior constitutional texts that may…operate to circumscribe
the impact of EU law upon national law.’ Neuberger observed that ‘the fact that
Germany has a Constitution enables a German court to say that German law
sometimes trumps EU law’ adding that  this
is an option which is much more rarely, if at all, open to a UK court as we have
no constitution to invoke.’12
HS2, however, indicates otherwise. It suggests that it would be open to a UK
court to refuse to apply EU law to the extent that it was incompatible with
constitutional law more fundamental than the ECA itself. On this approach, EU
law that infringed domestic constitutional rights or values might be denied
legal effect in the UK on the ground that the ECA had omitted to sanction the
disturbance of such norms with a ‘clarity commensurate with their
fundamentality.’ Elliot doesn’t go so far as to suggest that such an approach
would confer upon such norms a degree of constitutional security equivalent to
that which is supplied by certain written constituions. He does, however,
indicate that such an approach might engender a form of domestic security in
excess of that which could be accommodated by a conventional Diceyan analysis
of the British constitution.

1 Albert Venn Dicey, An Introduction to the Study of Law of the Law
of the Constitution (Macmillan, 8th ed., 1996)

2

3 Revolution Evolution, Wade

4

5 (Imprisoned
by a Doctrine: The Modern Defence of Parliamentary Sovereignty, Vernon Bogdanor).

6 Public Law in a Multi-Layered Constitution, 281

 

 

7

8 “Parliament cannot bind its
successors by stipulating against repeal, wholly or partly, of the European
Communities Act 19721. It cannot stipulate as to the manner and form of any
subsequent legislation. It cannot stipulate against implied repeal any more than
it can stipulate against express repeal … The British Parliament has not
the authority to authorise any limitations upon its own powers. Being
sovereign, it cannot abandon its sovereignty . . . This is, of course, the traditional doctrine of sovereignty. If it
is to be modified, it certainly cannot be done by the incorporation of external
texts such as the European Community Treaty. The conditions of Parliament’s
legislative supremacy in the United Kingdom necessarily remain in the UK’s
hands. But the traditional doctrine has in my judgment been modified. It has
been done by the common law, wholly consistently with constitutional
principle.””

 

10

11

12  Lord
Neuberger, ‘ The British and Europe’,
, para. 34, visited 9
July 2014.

 

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