The United Kingdom’s entrance into the European Economic Community (EEC) in 1973 by virtue of the Treaty of Accession 1972 has positioned the UK courts in the throes of a power struggle between clashing doctrines of EU Law Supremacy and Parliamentary Sovereignty (PS). The European Communities Act (ECA) 1972 was enacted to incorporate Community law into domestic law. Brexit introduces the possibility of undoing this, bringing the constitution back to the Pickin stage, where no Act of Parliament could be questioned or rendered invalid. This essay seeks to critically assess the constitutional tension between parliamentary sovereignty and EU supremacy and the uncertainties arising from the UK’s ‘uncodified’ constitution, before concluding the impossibility of a pre-1972 constitutional resurrection.
What EU meant for the British Constitution
The pre-1972 constitutional settlement is an amalgamation of significant developments (Battle of Hastings, Charter of Liberties, Magna Carta) witnessing the shift from monarchy to political constitutionalism. Today, it is underpinned by fundamental principles: the requirement of a Separation of Powers (SOP), the adherence to the Rule of Law, and the recognition of Parliamentary Sovereignty.
This historically political constitution relies heavily on the traditional Diceyan orthodoxy of Parliament Sovereignty: Parliament could make or unmake any law but could not bind its successors. Parliamentary Acts were seen to ‘[prevail] over every other form of law’. In the UK, legislative power is vested in Parliament. Courts have to interpret legislation to give effect to Parliament’s intention, holding the executive to account. Upon joining the EU, parliamentary sovereignty came under ‘attack’. Parliamentary legislation could no longer take effect over any inconsistent common law rules or prerogative powers due to Direct Effect and Supremacy.
The UK’s recognition of EU supremacy arose from ECA 1972, which was required for international law to have domestic effect, given the UK’s dualist system. Member states were restricted from passing legislation overriding EU law. S2(4) ECA protected S2(1) against implied repeal, challenging the traditional parliamentary sovereignty doctrine by binding future legislation. S3 further postulates that courts should act ‘in accordance with … the European Court’. These sections appear to import a departure from the ‘monolithic’ sovereignty that the UK was accustomed to pre-1972, where a later Act would impliedly repeal previous inconsistent Acts. However, to say that parliamentary sovereignty was lost is to adopt a rigid understanding of the constitution and PS.
The doctrine of EU supremacy was introduced in Costa v ENEL and Van Gen den Loos, which established that Community law ‘could not be overridden by domestic legal provisions’. Simmenthal confirmed this, holding that conflict between national law and directly applicable Community law must be resolved by rendering national law inapplicable. More significantly, CJEU asserted the superiority of EU law, stressing that it was inherent in the very nature of the organisation to which member states had transferred power and sovereignty. Such provisions requiring national courts to protect Community rights arguably limit Parliamentary power. This articulates a shift towards a legal constitution, where the government is held to account through law, as administered by judges and adjudicative litigation.
In line with the new duty to construe an Act of Parliament compatibly with Community law, Lord Denning postulated the novel ‘construction’ approach in Macarthys. He opined that courts should take into account all binding and directly applicable Treaty provisions and relevant national legislation holistically. EU law should aid the court’s statutory construction by presuming that Parliament intended to legislate in line with EU law obligations. Only where inconsistent would be the court’s ‘duty to give priority to Community law’. This ‘construction’ approach was adopted in subsequent cases, providing authority for the proposition that statutes will not be given effect if they departed from EU law provisions, signalling the shift from PS.
Although commonly argued that parliamentary sovereignty is still preserved since Parliament is able to willingly resolve inconsistencies in favour of EU law, it seems impossible for courts to continuously succeed in interpreting national law compatibly with EU law. The primacy of EU law simply cannot be achieved by statutory construction alone.
The linguistic limitation of the construction approach surfaced in Factortame, where the Merchant Shipping Act 1988 could not be construed compatibly with existing EU law and was held not to have overridden the 1972 Act. Confirming direct effect and EU law supremacy, Wade thus deemed Factortame revolutionary. EU supremacy had now ‘undone’ constitutional principles by binding successive Parliaments.
Accordingly, it might appear to follow from Factortame that Parliament had succeeded in partial entrenchment through imposition of a requirement of manner on future legislation. parliamentary sovereignty would therefore be reasserted in its traditional form following repeal of the 1972 Act upon Brexit. However, Laws LJ’s analysis in Thoburn highlighting the impossibility of the retention of parliamentary sovereignty following the constructionist approach should be noted.
Laws LJ argued the recognition of 1972 Act as ‘a constitutional statute’ . The court’s duty was to interpret all legislation to give effect to constitutional statutes, insulating them from implied but not express repeal. Where two constitutional statues conflicted, the more fundamental one would be prioritised. Technically parliamentary sovereignty would be retained but significantly constrained by political consequences (ie the need to maintain international legitimacy). These implications for parliamentary sovereignty go beyond the EU-UK law relationship. If such judicial reconfiguration of parliamentary sovereignty is constitutionally permissible, then this hints the possibility of ‘judicial supremacy’, disrupting the PS-centric political pre-1972 UK constitution.
Shifts toward a legal constitution
The UK’s fluid uncodified constitution (drawn from statute, common law and prerogative powers) has progressively evolved towards a legal constitution, especially upon joining the EU. This is evidenced through the judiciary gaining more power and legitimacy, and represented by increasing statutes developed that preserve individual freedoms from an overreach of executive power. For instance, UK’s enactment of the Human Rights Act 1998 mandated for legal interpretation to be ECHR-compatible, culminating in the seminal case of Ghaidan.
This shift from the pre-1972 political constitution is exemplified by R(Miller). It was held that the government could not lawfully trigger Art 50 TEU without Parliamentary authority. Arguably, the issue of legality of state decisions arose from the UK’s uncodified constitution, which has evolved in a manner that is ‘pragmatic’ rather than principled. While the case acts as testament to the SOP outlined by the Constitutional Reform Act 2005, the absence of a unanimous judicial decision indicates the uncertainties created by the uncodified constitution, leading to varying interpretations of the extent of prerogative powers and of parliamentary intentions.
As with seminal cases of De Keyser and Proclamations, Miller reinforced Parliament’s role in the constitution. While the fundamental concept of sovereignty will always be protected in the UK, especially to uphold the SOP, it is evident that the changing shape of legislation cedes increasing power to the executive through the ability to make delegated legislation, increased discretion and ‘Henry VIII clauses’. Henry VIII clauses permit the government to amend primary legislation through subordinate legislation. While eligible for Judicial Review, they bypass the parliamentary scrutiny process. Despite heavy criticism, s26 WAA confers similar legislative powers on ministers, who are able to make delegated legislation relating to repealing and amending an estimated 20,000 EU-derived laws. Although criticised by the House of Lords Constitution and Delegated Powers and Regulatory Reform Committees, such powers remain unaltered, though some procedural safeguards were enacted. This transfers a large amount of power from Parliament to the executive, further threatening sovereignty and signals a significant change from the pre-1972 SOP constitution.
Brexit will do little to reverse the domestic shift in power. With the Government at the forefront making major decisions that determine the fate of UK legislation post-Brexit, it seems likely that power will not solely return to Parliament but to the executive as well.
Cross-fertilisation of UK and EU law
During UK’s EU membership, general EU principles have influenced domestic law, reflected in the EUWA and WAA. Sch 1 EUWA retains these principles and their relevant interpretation. Hence, EUWA and WAA have somewhat entrenched the EU regulatory framework into UK law, albeit with the possibility of Parliamentary amendment. Moreover, most safety and economic regulations are internationally regulated. Hence, such changes will be politically influenced, notwithstanding the depth and obligations required for the future UK-EU relationship. Thus, it is likely that the post-Brexit UK constitution will follow EU laws.
Given the uncodified British constitution, the harsh reality is that the current EU legislation will exert partial control over the domestic constitution post-Brexit, as exemplified by legislation regulating data protection. Such legislation remains important because of its multi-jurisdictional impact. UK’s data protection framework would thus be constrained to mirror EU’s law so as to ensure certainty of the continuity of data-exchange between UK and the rest of EU.
As such, Parliament theoretically retains sovereignty (albeit constrained) with the freedom to legislate as it pleases. However, while there might be hints towards a political constitution characteristic of pre-1972, realistically, even without legal consequences, UK legislation will effectively be influenced to mirror that of the current constitution so as to ensure UK-EU bilateral ties remain as intact as possible.
Impossibility of Brexit restoring PS
The impossibility of returning to a pre-1972 constitutional settlement is further strengthened by multiple dicta in Jackson, which suggest that the courts may no longer accept the orthodox view of parliamentary sovereignty in full, as it previously did pre-1972.
As per Lord Steyn, the traditional parliamentary sovereignty doctrine ‘can now be seen to be out of place in the modern United Kingdom.’ Lord Hope also remarked that parliamentary sovereignty ‘is no longer, if it ever was, absolute’. The sheer existence and practice of the judicial power to disapply legislation incompatible with EU law hold testament to this constitutional realignment.
Academics including Allan also remain rooted in the idea that the UK constitution was founded on the Rule of Law, which is superior to and capable of generating judicially enforceable limits on PS.
Parliamentary control of executive power underpins the British constitution by ensuring the doctrine of the SOP is kept intact, theoretically avoiding an over-concentration of power in one branch. Post-legislative control by the judiciary is insufficient, and may be impossible with regard to the Henry VIII clauses. Parliamentary sovereignty is further threatened by the increasing interconnectedness of the three branches, going against the constitutional principle of the SOP. Under the Constitutional Reform and Governance Act 2010, the government is obliged to lay new treaty proposals before Parliament for 21 sitting days before ratification, giving Parliament the theoretical opportunity to scrutinise and object to the ratification. Only a Commons’ objection would block ratification (veto has never occurred). Given that the Commons is Conservative (executive)-dominated, it seems unlikely that ratification would be blocked. Many bilateral trade treaties will also need to be negotiated following Brexit, which will likely dilute parliamentary sovereignty since its scrutiny becomes woefully inadequate, not least the limits placed on its powers . Furthermore, the Parliament timetable is government-controlled, which may seek to prevent discussion from taking place within the 21 days. This dilution of Parliament’s power hints at the likely possibility of a new constitutional order distinct from pre-1972.
Conclusion
Brexit’s repeal of the 1972 Act will likely result in a future constitution with few areas of law subject to radical change in order to minimise economic and political setbacks, and transitional arrangements that would need to be ironed out. As Lord Denning famously argued, EU law is an incoming tide that cannot be held back. To simply reverse the effects and revert UK Constitution to its pre-1972 settlement would be an ‘exercise of massive proportions’. Though the constitution fundamentally operates to preserve parliamentary sovereignty and give effect to the rule of law, the uncodified British constitution has never been settled, and its dynamic evolution has placed restrictions on reverting back to previous ‘editions’. Ultimately the powers that the judiciary and executive stem from Acts of Parliament, allowing Parliament to retain its sovereignty, though altering its Diceyan conception. In light of the move away from the Diceyan understanding of PS, coupled with the shifts in power from the Westminster Parliament to the executive and the devolved legislations, it seems unlikely that Brexit will resurrect a pre-1972 constitutions settlement.
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