The Traditional View of the Legal Supremacy of the United Kingdom Parliament - Essay Example

EU Law and the Sovereignty of Parliament The notion of parliamentary sovereignty de s that Parliament has supremacy over other s in a democracy. It examines and maintains the relationship between the executive, the judiciary and the legislature. Parliament makes the legislation, which the executive has to implement. The courts are precluded from questioning the legitimacy of statutes enacted by Parliament. However, the courts can examine the procedure adopted in the enactment of such statutes. If the legitimate procedure is employed in enacting the statutes, such as the ratification of the statute by both the Houses of Parliament and the grant of Royal Assent for those statutes, then the courts do not question the validity or legitimacy of the statutes; and only apply them. In Edinburgh & Dalkeith Railway Co. v Wauchope, the plaintiff railway company had obtained a private Act for its purposes. The defendant approached the court and argued that this private Act was detrimental to his interests and that it affected him unfavourably. He beseeched the court to examine the legitimacy of the Act. The court refused to intervene in the matter on the grounds that the Act had been passed in both the Houses of Parliament, and that it had also received the Royal Assent. Consequently, the court rejected the plea of the defendant. Thus, courts comply with statutes that have been properly enacted by Parliament (Edinburgh & Dalkeith Railway Co. v Wauchope). The tendency of courts in dealing with the legitimacy of statutes, enacted by Parliament was clearly exhibited in Ex Parte Canon Sewyn (Ex Parte Canon Sewyn) and Pickin v British Railways Board (Pickin v British Railways Board). The Factortame case challenged this sovereignty and compelled the English courts to suspend legislation that had been enacted by Parliament in due course. As such the Factortame case proved to be a major blow to the constitutional provisions of Parliamentary sovereignty. In R v. Secretary of State for Employment (R v Secretary of State for Employment, ex p. Equal Opportunities Commission); the House of Lords, on the basis of the Factortame decision, adopted a much more liberal approach. The Factortame decision had clearly demarcated the sovereignty of the Parliament; and this made it possible for their Lordships to bring about far reaching changes to the constitution. In this regard, their Lordships, refrained from instructing the Secretary of State and they also did not inform him that the EC law was being breached by him. The House of Lords restricted their intervention to conducting a judicial review, with the express purpose of modifying the relevant law to conform to EC law. The EOC and the Factortame cases engendered a trend, whereby the supremacy of EC Law was maintained (Maher). The House of Lords acknowledged that the Factortame case guaranteed the granting of relief to Spanish fishermen. According to the British constitutional law, Parliament is sovereign, and the latter can enact any law that it deems fit. Consequently, no court can ignore the statutes, forbid what has been enacted by Parliament or object to its activities (Fishing case tests parliament’s power - Factortame puts at stake fundamental rule of British law, 1991). The membership of the EU resulted in a number of challenges to the sovereignty of the British Parliament. It can no longer claim sovereignty, because all of its statutes are subject to EC law. This was clearly established in Factortame (R. v. Secretary of State for Transport, ex p. Factortame Ltd). This case constituted a challenge to Parliament’s right to enact statutes that cannot be questioned by any court (Fishing case tests parliament’s power - Factortame puts at stake fundamental rule of British law, 1991). After the UK became a Member State of the European Community, a number of cases were filed against the English statutes in various courts. These cases argued that the English statutes were in conflict with the EU law and that they were not complying with the provisions of the EU law. The courts examined the legitimacy of the legislation and used their discretionary powers to successfully incorporate the provisions of the EC law in English statutes and thereby made them to conform to the EC law. This was demonstrated by the subsequent case law. The cases of Garland v British Rail Engineering Ltd (Garland v British Rail Engineering Ltd ) and Pickstone v Freemans Plc (Pickstone and others v Freemans plc) illustrate the fact that the courts applied interpretation of the EC law provisions and incorporated them in the English statutes. In 1986, the ECJ held in the Marshall case that compelling female employees to retire from service, prior to their male colleagues was incorrect. Such requirements were deemed to be in breach of the European Commission’s Equal Treatment Directive. Consequently, the British government was required to modify its legislation to comply with this Directive (Case 152/84 Marshall v Southampton and SW Hants Health (No1)). In the 1991 Foster case, the ECJ expanded the meaning of the term public sector and included some private sector utilities in the definition of the public sector. This made it possible to apply the jurisdiction of the EC Directives to several pieces of national legislation. The ECJ had also ruled that the national domestic courts of the Member States were under an obligation to interpret their national legislation, without ignoring the EC Law provisions and without violating them. Consequently, the national courts have to interpret their national law in accordance with the EC Law (C-188/89 Foster v British Gas Plc). In its subsequent case law, the ECJ held the Member States liable for non-implementation or improper implementation of EC Directives. This was established in Francovich (Joined cases C-6/90 and C- 9/90 Andrea Francovich and others, Danila Bonifaci and others v Italian Republic); von Colson (C 14/83 von Colson); and in Marleasing (C-106/89 Marleasing SA v La Comercial Internacional). In these cases, the Court held that failure of timely and proper implementation of the EC Directives by Member States, had rendered them liable to compensate the individuals who had suffered loss or damage due to such non – implementation. The 1996 P v S case was a significant case that had involved the European Court of Justice. In that case, an employee changed his gender, by undergoing a gender change operation. He was subsequently, dismissed by his employer for having changed his gender. The ECJ held that dismissal to be a breach of the Equal Treatment Directive and directed that the employee was to be reinstated in his job. This decision was a telling example, regarding the manner in which the ECJ applies EC Directives in the Member States (C-13/94 P v S and Cornwall County Council). If there is a clash between the EC law and the English law, then the EC law takes precedence over the latter. This is because the EC law enjoys supremacy over national law under the doctrine of supremacy. Furthermore, it has long been contended that in any dispute EC law prevails over the domestic law of the Member State. Therefore, the ECJ can declare English law, that conflicts with EC law, as null and void (Legal View - Recent case shows Lords reluctance to endorse the supremacy of European law, 1991). Under the doctrine of supremacy, any provision of the EC law can override English law that was enacted prior to 1st January 1973. This can be seen in the ECJ’s rulings in some cases such as the 1981 Henn case (R v Henn and Darby) and in the 1982 Goldstein case (R v Goldstein). However, this does not imply that the concept of parliamentary sovereignty has been repealed by European law. The doctrine of parliamentary sovereignty persists in the UK, as long as it does not conflict with the EC law provisions. Statutes enacted after the 1st of January 1972 have undergone the effect of the supremacy of the EC law. As such, future enactments of statutes have to incorporate the provisions of the EC law. Similarly, the UK parliament requires its national courts to interpret new legislation in the light of Community law and to ensure that the latter takes precedence over the national legislation (Fenwick, Phillipson, & Fenwick, 2003. Pp. 169 – 170). Parliament cannot deem itself to be sovereign in cases entailing EC law, and it has to act in accordance to the provisions of Community law. This change was engendered by the decision in Factortame. This particular case expanded the views of the national court with regard to the application of English statutes. The Merchant Shipping Act 1988, which had been enacted by the UK Parliament proved to be in conflict with the principles of Community law. The UK courts found it to be a daunting task to make the UK statute compatible with Community Law. There was only one choice before them, and that was to legally uphold the UK statute. This move resulted in a direct conflict with the European Union authorities (Fenwick, Phillipson, & Fenwick, 2003. Pp. 169 – 170). The European Communities Act came into force on the 1st of January 1973. This Act overrules any conflicting provisions in the UK statutes that were enacted earlier to the European Communities Act. The doctrine of supremacy and the provisions of section 2(4) of the European Communities Act provide that the EC law would prevail over the UK legislation. The doctrine of supremacy of EC law over national legislation had a far reaching effect on the concept of parliamentary sovereignty in the UK. As such, under the provisions of EC law, national courts and law enforcement authorities are required to implement the Community law (Turpin & Tomkins, 2007. Pp. 320 – 321). As such, the jealously guarded Parliamentary Sovereignty in legislating had to make way for the supremacy of EC Law, consequent to the UK becoming a Member State of the EU. List of References C 14/83 von Colson, (1984) ECR 1891. C-106/89 Marleasing SA v La Comercial Internacional, 1992. C-13/94 P v S and Cornwall County Council, (1996) ICR 795. C-188/89 Foster v British Gas Plc, (1991) ICR 84. Case 152/84 Marshall v Southampton and SW Hants Health (No1), 1986 ECR 723. Edinburgh & Dalkeith Railway Co. v Wauchope, (1842) 8 C1 & F710. Ex Parte Canon Sewyn, (1872) J.P. 54. Fenwick, H., Phillipson, G., & Fenwick, P. (2003. Pp. 169 – 170). Text, Cases & Materials on Public Law & Human Rights. Routledge Cavendish. ISBN: 1859416551. Fishing case tests parliament’s power - Factortame puts at stake fundamental rule of British law. (1991, July 23). Lloyds List International . Lloyds of London Press Limited. Garland v British Rail Engineering Ltd , (1982) ICR 420. Joined cases C-6/90 and C- 9/90 Andrea Francovich and others, Danila Bonifaci and others v Italian Republic, (1991) ECR I-5357. Legal View - Recent case shows Lords reluctance to endorse the supremacy of European law. (1991, March 06). Review . English (c) 1991 Trend Agency. Maher, I. (n.d.). The Common Law Courts as EC Courts. Retrieved July 30, 2008, from http://www.ecsanet.org/conferences/ecsaworld2/maher.htm Pickin v British Railways Board, (1974) AC 763. Pickstone and others v Freemans plc, (1988) 2 All ER 803, (1988) 3 WLR 265, (1989) A.C. 66 . R v Goldstein, (1982) 1 W.L.R. 804. R v Henn and Darby, (1981) 2 All E R 166. R v Secretary of State for Employment, ex p. Equal Opportunities Commission, (1994) 1 All ER 910. R. v. Secretary of State for Transport, ex p. Factortame Ltd, (1990) Case 213/89, 3 CMLR 867. Turpin, C., & Tomkins, A. (2007. Pp. 320 – 321). British Government and the Constitution: Text and Materials. Cambridge University Press. ISBN: 0521690293. Read More