This essay examines the influence of the incorporation of the Lisbon Treaty to the UK law on one of the fundamental principles of the UK constitutional system – the doctrine of parliamentary sovereignty (also called supremacy). The essay is divided in three main sections. The first explores the doctrine of parliamentary sovereignty and defines its meaning. Then it focuses on the accession of the UK to the European Communities in 1973 and its impact on the principle. Finally, the British regulations incorporating the Lisbon Treaty to the UK law are analysed.
The doctrine of parliamentary sovereignty (or supremacy) is one of the fundamental principles of the constitution of the United Kingdom. For some academics it is even the most important one. It is the doctrine of parliamentary sovereignty which explains why there is no codified constitution in the UK. If British Parliament is sovereign, then the constitution and law is what the Parliament enacts. The doctrine was first described by academics in the 19th century. However, in the post-war UK history, especially the latest history, the principle of parliamentary sovereignty has been put under strain as a result of some of the constitutional reforms enacted by Labour governments in 1970s and at the turn of the 20th century. Going back to 1970s the major constitutional implications had the British entry into the European Communities.
The purpose of this essay is to analyse the impact of incorporating the Lisbon Treaty to the UK legal system on the doctrine of parliamentary sovereignty. Therefore, the first section defines and explores the constitutional principle of parliamentary sovereignty; the second describes in short the challenges for the doctrine caused by the accession of the UK to the European Communities; finally, before summarising and concluding with some future reflections, the essay focuses on the incorporation of the Lisbon Treaty to the British legal system and its impact on the doctrine. All the other reforms which placed the doctrine under strain, especially those enacted by Tony Blair’s government in late 1990s and early 2000s, are intentionally omitted, because they go beyond the aim of the essay and have little influence on the final deductions.
The parliamentary sovereignty
The British doctrine of parliamentary sovereignty is a very complex one. Therefore, it is essential to explain in the first place the meaning of basic terms such as ‘sovereign’ and ‘sovereignty’, and then the concept of ‘parliamentary sovereignty’. According to Merriam-Webster Dictionary a term ‘sovereign’ refers to a person “that exercises supreme authority within a limited sphere”. Originally this term denoted a monarch or a ruler. However, the meaning of ‘sovereign’ evolved in the Age of Enlightenment, when philosophers like Thomas Hobbes, John Locke, and Jean-Jacques Rousseau elaborated the ‘social contract’ theory. According to this theory the people were considered to be the legitimate sovereign, but they contracted their sovereignty to a ruler in return for his maintaining their safety. Hence, if the ruler failed to do this, the people were released from their obligation to obey him. According to the Penguin Dictionary of Politics (Robertson, 1986: 305) ‘sovereignty’:
“means the right to own and control some area of the world. It has nowadays nothing to do with monarchy […]. Its basic meaning is legitimate rule, as opposed to actual power.”
In democracies the understanding of the sovereignty is often connected with the rule of the people, thus one can talk about the sovereignty of the people. Although these two terms defined in that way are quite easy to understand, problems arise when an institution is designated as a sovereign instead of an individual or the people. This is because an institution such as parliament needs to be precisely defined. It is necessary to specify rules of working, nominating members and determining what is to count as a correct procedure or valid enactment. This view has been supported in the work of Bogdanor (2009: 280). He also states that “Parliament is sovereign only when it acts in a certain manner prescribed by the rules” (Bogdanor 2009: 280–281). But what does it mean that Parliament is sovereign?
Probably the first person who described the sovereignty of Parliament as one of the fundamental features of the constitution of the UK was a British constitutional lawyer Albert Venn Dicey. In his book, An Introduction to the Study of the Law of the Constitution, Dicey (1959: 40) explains that the principle of parliamentary sovereignty means that Parliament has:
“the right to make or unmake any law whatever; and, further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament”
The first implication of Dicey’s definition is that the courts cannot overrule the legislation of Parliament. The second implication is that no Parliament of the day can pass laws that future Parliaments cannot change. For Dicey (1959: 39) the doctrine of parliamentary sovereignty was “from a legal point of view the dominant characteristic of our political institutions”. Dicey’s understanding of this principle was, therefore, similar to that what is called the ‘rule of recognition’ and consequently made it the most important part of the British constitution; the rule which simply identifies other rules.
Although it is still strongly believed that the sovereignty of Parliament is the central principle of the British constitution, many theorists argue that British and every other legal system is based on more than one fundamental principle and it is hard to grade them. For instance Barber (2000: 137) claims that “the English legal system possesses multiple unranked sources of legal power” and “that neither Kelsen's Grundnorm nor Hart's rule of recognition can be accepted as universal truths of legal systems”. One of the other crucial principles of the British constitution is the rule of law (Garnett & Lynch, 2009: 118). This principle consists of ‘two sovereignties’ (Bradley, 2004: 27). The first one is the sovereignty of Parliament and the second is the sovereignty of the courts. However, the former refers to ‘law making’, and the latter to ‘interpreting and applying the law’. Therefore, both courts and Parliament must coexist and it makes the principle of parliamentary sovereignty much more complicated. The quotation below illustrates it perfectly:
“the sovereignty of Parliament can be said to be based upon decisions of the courts in applying Acts of Parliament” (Bradley, 2004: 29)
The relation between the courts and Parliament will be brought up again in the part considering the accession of the UK to the European Communities and its impact on the doctrine of parliamentary sovereignty. Another vital issue which also has to be considered is the present-day perception of the parliamentary sovereignty. Both Bradley (2004: 58) and Bogdanor (2009: 283) distinguished the form and the substance of parliamentary sovereignty. In other words they divided the understanding of the parliamentary sovereignty into theoretical (form) and practical (substance). Nonetheless, it is essential to mention here about another famous British constitutional lawyer – Sir Ivor Jennings and his thoughts. He agreed with Dicey that the Parliament can enact legislation dealing with any subject (Jennings, 1959: 170) and that the legislation of the Parliament is superior to the jurisdiction of the courts (Jennings, 1959: 254). However, Jennings (1959: 170) claimed also that the supremacy of the Parliament exists only in theory, because it “is a legal fiction and legal fiction can assume anything”. To prove this he gave a famous example that:
“if Parliament enacted that all men should be women, they would be women so far as the law is concerned” (Jennings, 1959: 170).
This case shows that there is a disagreement between academics about the existence of the doctrine of parliamentary sovereignty in practice. For that reason, during the following sections only the theoretical aspect of the doctrine will be analysed.
The accession of the UK to the European Communities
The British government by virtue of the Royal Prerogative has power to enter into international treaties that bind the state. However, the doctrine of parliamentary sovereignty implies that no alteration of the rights of British citizens and all the other individuals within the UK can be done without the Parliament’s consent. These rights can be altered only by Acts of Parliament. For that reason, if the UK does not want to be in breach of its international obligations, the Parliament has to incorporate international law into UK law by enacting Acts. (Bradley, 2004: 41–42)
In 1972 the Parliament enacted the European Communities Act which incorporated the Community law into the British legal system. By doing this the Parliament incorporated also two revolutionary principles – the principle of direct effect and the principle of supremacy. The first one means that Community law1 is capable of conferring rights and duties directly on the individuals and national courts are obliged to interpret all legislation in compliance with the Community law. This doctrine was established by the decision of the European Court of Justice in Van Gend en Loos case in 1963. The supremacy of Community law was, on the other hand, established in 1964 by the decision of the ECJ in Costa v. ENEL case. It refers to the fact that Community law is superior to national laws. In other words, Community law takes precedence in the case of conflict with provisions of national law. Moreover, this is regardless the time when these provisions were made, so Community acts are superior even to those national acts which were enacted later. (Page, 2004: 37–38)
These two principles have had a great impact on the doctrine of parliamentary sovereignty. As it was mentioned before, one of the implications of parliament sovereignty is that the courts cannot overrule the legislation of Parliament. The accession of the UK to the European Communities has changed this. Although the Parliament voluntarily enacted the ECA 1972, the principle of parliamentary sovereignty has been put under strain. Since then the British courts have the power to review Acts of Parliament on grounds of incompatibility with Community/EU law (Page, 2004: 48–54). It was also said that the doctrine of parliamentary sovereignty implies that no Parliament of the day can pass laws that future Parliaments cannot change. Since the UK entered into the EC, every newly-elected Parliament is bound by the provisions of Community/EU law and has to obey all of those provisions.
Nevertheless, the defenders of the doctrine of parliamentary sovereignty claim that those limitations are voluntary and temporary, because theoretically the Parliament can at any time decide to withdraw from the EU. Furthermore, they emphasise the fact that all the new sources of primary EU legislation, especially the Treaties, have to be incorporated by Acts of Parliament. In other words, the UK will not be bound by a new Treaty until the Parliament wishes to approve it by enacting a particular Act.
The incorporation of the Lisbon Treaty to the UK legal system
As it was stated before the rights of individuals within the UK can be altered only by Acts of Parliament. Therefore, the Parliament had to enact an Act which incorporated the provisions of Lisbon Treaty to the UK law, so that these provisions are in force with regard to British territory. That is why in June 2008 the Parliament enacted the European Union (Amendment) Act 2008.
Taking the doctrine of parliamentary sovereignty into consideration, especially two clauses of that Act should be analyzed. These are clause 5 and clause 6. Clause 5 imposed new requirements for prior parliamentary authorization before the Government ratifies a treaty amending the founding Treaties of the EU. However, it applies only to the amendments made under the “ordinary revision procedure”. On the other hand, clause 6 imposed parliamentary control over the Government’s capacity to agree to amendments made under the “simplified revision procedure” or the passerelles (House of Lords, 2008: 10–15).
The term passerelle in general is a term used in the jargon of the EU and describes a category of provisions which permit alterations to the Treaties’ arrangements without invoking an ordinary procedure of their amendments. However, according to Nowak-Far (2010: 1–2) the Lisbon Treaty “has significantly expanded the scope of application of this specific formula and made it clear”. In the case of the revision of founding Treaties, the decision-making process in Council of the EU normally requires unanimity. Nevertheless, simplified revision procedure and passerelles allow in some cases a shift from unanimity to qualified majority voting. This shift makes it much easier to amend the founding Treaties. Hence, the British legislator tried to include in clause 6 all new provisions which allow a move from unanimity to qualified majority voting in the Council of the EU, so that the Parliament could control the Government in these cases (House of Lords, 2008: 14).
Both clauses are crucial for maintaining the principle of parliamentary sovereignty. At least from the legal point of view. The fact that the Government has to seek parliamentary authorization before ratifying any future changes to the founding Treaties makes it clear that the sovereign power theoretically belongs to the whole Parliament, whose legislation is the highest law in the UK. One can call into question this claim arguing that according to the principle of supremacy of EU law, it takes priority over any inconsistent national law. Nevertheless, the Lisbon Treaty introduced an important provision that explicitly confirms the right of Member States to withdraw from the EU (Article 50 TEU). This provision emphasizes the argument that UK remains bound by the EU law as long as the Parliament wishes to remain in the EU. Therefore, it can be stated that the incorporation of the Lisbon Treaty to the UK law have not put the doctrine of parliamentary sovereignty under additional strain and in theory this doctrine still prevails in the national law of the UK.
Another important issue is the Charter of Fundamental Rights of the European Union and the Protocol 7 (which provides for the application of the Charter to the UK and Poland). Article 6 TEU, as amended by the Lisbon Treaty, made the Charter legally binding. Hence, not only the European Court of Justice, but also national courts have to refer to the rights and principles included in the Charter while interpreting legislation. Many British and Polish politicians were afraid of the fact that the Charter was going to bound Member States with some ‘new rights’. In the UK, they also thought that it can additionally endanger the doctrine of parliamentary sovereignty. That is why the Protocol 7 arose as a kind of opt-out from the Charter. However, many academics and lawyers proved that in fact, the Charter is not innovative, does not create ‘new rights’ and just codifies existing ones, and the Protocol 7 merely clarifies the application of the Charter or even repeats the reservations included in Article 6 TEU (House of Lords, 2008: 20–23).
The place of the principle of parliamentary sovereignty in the UK has, in practice, definitely changed after accession to the European Communities. Although further amendments of the founding Treaties and integration processes undoubtedly have, from a practical point of view, bound the principle to a greater degree. Nevertheless, this fundamental principle, at least in theory, is still far from erosion. It is really hard to question the argument about withdrawal from the EU and the Parliament’s free will in deciding whether the UK should stay in the EU or not. It is true that Parliament, in practice, is not omnipotent and cannot do whatever it wants. But has it ever been omnipotent from that point of view? After all, according to Sir Jennings (1959: 170) “the supremacy of parliament is a legal fiction” and Parliament “cannot in fact change the course of nature” or “do all sorts of things”. The changes related to European integration and globalisation processes which influenced the UK political and constitutional system merely prove Jennings’ claim.
- Barber, Nicholas. 2000. “Sovereignty re-examined: the courts, Parliament and statutes”. Oxford Journal of Legal Studies 20, no. 1, pp. 131–154.
- Bogdanor, Vernon. 2009. The New British Constitution. Oxford and Portland, Oregon: Hart Publishing.
- Bradley, Anthony. 2004. “The sovereignty of parliament: form or substance?”. In: The Changing Constitution. 5th ed. Eds. Jeffrey Jowell and Dawn Oliver. Oxford: Oxford University Press.
- Dicey, Albert Venn. 1959. Introduction to the Study of the Law of the Constitution. 10th ed. London: Macmillan.
- Garnett, Mark and Lynch, Phil. 2009. Exploring British Politics. 2nd ed. Harlow: Pearson Longman.
- House of Lords, 2008. European Union (Amendment) Bill and the Lisbon Treaty: Implications for the UK Constitution. London: TSOL.
- Jennings, Ivor. 1959. The law and the constitution. 5th ed. London: University of London Press.
- Nowak-Far, Artur. 2010. “The passerelle formula in the Treaty of Lisbon” In: The Treaty of Lisbon – Treaty of European Parliaments. Warsaw 22–23 February 2010. Conference paper.
- Page, Alan. 2004. “Balancing supremacy: EU Membership and the Constitution”. In: Britain in the European Union: law, policy and Parliament. Eds. Philip Giddings and Gavin Drewry. Basingstoke: Palgrave Macmillan.
- Robertson, David. 1986. The Penguin Dictionary of Politics. Penguin Books: Harmondsworth.
- European Union (Amendment) Act 2008
- Flaminio Costa v. ENEL 
- NV Algemene Transporten Expeditie Onderneming van Gend & Loos v. Netherlands Inland Revenue Administration 
Marek Garlicki is a MA European Studies student at the Faculty of Journalism and Political Science, University of Warsaw, Krakowskie Przedmieście 26/28, 00–927 Warszawa, Poland. Email: firstname.lastname@example.org
Poznámky pod čarou
- After the ratification of the Lisbon treaty, the Community law should be called European Union law.
That the United Kingdom’s Parliament is sovereign is a — perhaps the — fundamental principle of British constitutional law. Yet the supremacy of European Union law — meaning that it takes priority over conflicting laws enacted by individual Member States — is a basic principle of the EU’s legal system. These two propositions appear to stand in stark contrast to one another: they seem to imply competing, and ultimately contradictory, claims as to ultimate legal authority, at least in areas to which EU law applies. This, in turn, raises the question whether the UK’s membership of the EU (for as long as that membership persists) means that the sovereignty of Parliament is qualified by EU law.
One of the twentieth century’s greatest British public lawyers, the late Professor Sir William Wade, argued that the answer to that question is affirmative. He contended that the UK’s entry into the EU had triggered a constitutional ‘revolution’, whereby British judges had transferred their allegiance from Parliament to the EU as the ultimate lawmaker for the UK. In fact, Wade went further, arguing that parliamentary sovereignty is not merely suspended for as long as the UK remains a member of the EU, but that parliamentary sovereignty has been extinguished (albeit that on Wade’s view ‘Brexit’ could, but not necessarily would, reignite the notion of sovereignty). It was in that way that Wade sought to explain the landmark judgment of the Appellate Committee of the House of Lords in the Factortame case, in which part of an Act of Parliament was ‘disapplied’ on account of its incompatibility with EU law.
That such a momentous step was taken in Factortame is, on the face of it, grist to the mill of those who contend that sovereignty has been ceded to Brussels. Yet Wade’s analysis — and the dramatic consequences that it implies — is problematic. For one thing, it is incompatible with the way in which Lord Bridge — the only Law Lord in Factortame to consider this point in any detail at all — explained the judgment. He argued that any limitations upon its sovereignty implied by EU membership had been accepted ‘voluntarily’ by Parliament when it enacted the European Communities Act 1972. The implication was that Parliament is at liberty to permit EU law to prevail over its own enactments. The flip side of that coin must be that if Parliament chooses not to permit EU law to have that effect — either by repealing the 1972 Act or asserting the priority of only certain pieces of domestic legislation over conflicting EU law — then it is free to do so. Indeed, Parliament has indicated, albeit in somewhat cryptic terms, that this is its own understanding of the position: section 18 of the European Union Act 2011 stipulates that EU law has effect in the UK only because Parliament, by enacting the 1972 Act, has allowed it to.
This, however, raises a further question. If the priority enjoyed by EU law over UK law exists because of an Act of Parliament, what does this mean for parliamentary sovereignty? In particular, does it mean that Parliament is not sovereign while the UK is a member of the EU, albeit that that loss of sovereignty has come about because it is what Parliament wanted? Such an argument would raise difficulties of its own, not least because on any orthodox understanding of the sovereignty principle, limiting its own powers is — paradoxically — the one thing that Parliament cannot do. As Laws LJ put it in the Thoburn case: ‘Being sovereign, [Parliament] cannot abandon its sovereignty.’ How, then, to account for the view that Parliament has somehow managed, via the European Communities Act 1972, to elevate EU law above its own enactments?
… whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary.— Lord Bridge, Factortame (No 2)
That question goes unanswered in the Factortame case, but at least the beginnings of an answer to it can be found in the subsequent decisions of the Administrative Court in Thoburn and the Supreme Court in the HS2 case. Those judgments develop the idea that the 1972 Act — along with certain others — is a ‘constitutional statute’, meaning that it prevails over other legislation unless such legislation explicitly overrides the 1972 Act. This means that the efficacy conferred on EU law by that Act holds good, including in the face of legislation that is incompatible with EU law, unless such legislation expressly says otherwise. Parliament is, then, sovereign in the sense that it remains capable of overriding EU law by revoking or qualifying the priority accorded to EU law by the 1972 Act. But the courts will only take Parliament to have done that if it makes its intention crystal—that is, explicitly—clear. On this analysis, the degree to which EU law has priority over Acts of Parliament turns upon the interpretation of Acts of Parliament, and so the matter remains ultimately within Parliament’s control.
Where, then, does this leave us? If EU law is supreme, can Parliament be sovereign? The answer is ‘yes’. Parliament can insist that domestic legislation — either generally, or in respect of particular Acts — is to prevail over EU law. This follows because the default primacy enjoyed by EU law in the UK is itself attributable to an Act of Parliament — that is, the 1972 Act — and Parliament remains capable of amending, overriding or even repealing that Act. In Miller, the majority’s analysis reinforces the view that Parliament has remained sovereign throughout the UK’s membership of the EU, albeit that the majority also suggests that while EU law has effect in the UK thanks to the 1972 Act, EU law can also (and should) be thought of as a “direct”, “independent” and “overriding” source of domestic law. The Miller majority fails to make clear how its analysis relates to the position adopted by the Supreme Court in the HS2 case.
The general conclusion — that Parliament remains sovereign, the EU supremacy principle notwithstanding — is subject to an important caveat: that while, as a matter of domestic law and politics, parliamentary sovereignty can be exercised in spite of the EU supremacy principle, it does not qualify or limit that principle. This seems to take us back to our original problem: that the sovereignty of Parliament and the supremacy of EU law appear to be fundamentally incompatible. But this is not in fact so. Their reconciliation can be achieved by recognising that they operate in different legal spheres, albeit that those distinct spheres may, and do, come into contact with one another. Parliament is sovereign as a matter of UK law. In contrast, the EU supremacy principle is binding upon the UK as a matter of EU, and so ultimately international, law. So while the UK as a State is bound by its Treaty obligations to abide by EU law, this does not in itself require parliamentary sovereignty to be denied as a domestic legal principle.
Ultimately, then, Parliament retains the domestic legal authority to make whatever laws it pleases, even if such laws conflict with EU law. But, as a matter of EU and international law, doing so may place the UK as a State in breach of its obligations under the EU Treaties. The upshot is that, for as long as the UK remains a Member State of the EU, parliamentary sovereignty still exists, but it is unlawful — as a matter of EU and international law — for sovereignty to be exercised in ways that are incompatible with EU law.
This post forms part of my 1,000 words series. I have written in more detail about the implications for parliamentary sovereignty of the UK’s membership of the EU elsewhere, in particular in an article published in the Northern Ireland Legal Quarterly concerning the Thoburncase, and in a paper published in the European Constitutional Law Review on the Supreme Court’s HS2 decision.
Tags: 1000 words, constitutional law, EU law, parliamentary sovereignty