Law Sessions With Jennifer Housen’s Podcast

The Evolving Boundaries: Parliamentary Sovereignty in Modern Britain

Subscriber Episode • • Jennifer Housen • Season 4 • Episode 4

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Parliamentary sovereignty faces significant challenges from EU membership and the Human Rights Act, reshaping the UK's constitutional framework. We explore how these developments have created a "special legal order" that impacts Parliament's traditional supremacy while maintaining its theoretical sovereignty.

• EU membership created a new legal order where community law takes precedence over inconsistent national law
• The European Communities Act 1972 incorporates EU law directly into UK law
• Lord Denning described EU law as an "incoming tide" flowing into UK legal estuaries
• Courts have treated the ECA as a "constitutional statute" not subject to implied repeal
• The Human Rights Act requires courts to interpret UK law compatibly with human rights
• Section 4 of the HRA allows courts to make declarations of incompatibility
• Section 10 enables amendment of incompatible legislation through delegated legislation
• Parliament remains theoretically sovereign but faces practical limitations
• These constitutional developments create potential "constitutional nightmares" if reversed

I urge you to review the EU law session and Human Rights Act lecture for more depth on how these interpretative obligations impact parliamentary sovereignty.


💡⚖️ Let’s learn the law together—one session at a time!

Speaker 1:

Welcome back to this final segment of this public law law session on parliamentary sovereignty. We have explored, over the last three segments, certain aspects of parliamentary sovereignty, from a definition right through to AV Dice's exposition, and what we are concluding here with is looking at certain contemporary issues which have largely impacted on the concept of parliamentary sovereignty. Now, the two primary ones, of course, are the European Union membership by the UK as well as the Human Rights Act. There are, of course, are the European Union membership by the UK as well as the Human Rights Act. There are, of course, minor issues to do with devolution which you can look at, but the short point to do with devolution is that if there are devolved powers for example the Scottish Parliament or the Welsh Assembly or the Northern Ireland Assembly, to actually legislate on certain issues, does this mean that parliamentary sovereignty is compromised? Well, the short answer to that, of course, is to say that although parliamentary sovereignty is impacted, it is an act of parliament which has given this whole devolved power and an act of parliament can take back that devolved power. So, looking first at the impact in respect of membership of the European Union and the impact that such membership has had on the traditional theory of parliamentary sovereignty. Well, as a member of the European community, the UK has joined a special legal order.

Speaker 1:

Now, if you go back to what I mentioned earlier in respect of monist and dualist, well, the whole membership of the EU impacts significantly on this concept of a dualist jurisdiction. Because the point is, when you look at the types of legislation which emanate from the EU, they come in various forms. It can be from the treaty itself, it can be regulations, it can be directives. When you look at the impact of a regulation which, when it is enacted at EU level, it comes directly into law into the UK without any need for enabling legislation from Parliament, that arguably appears to impact. Now, the point is, when you look at the case law coming out of the EU, one of the biggest cases, the case of Van Gendenloos, says that what happens, or what is happening in the EU here is that this is a different type of legal order, separate from the whole monist dualist approach, and it is where you have a rule which accords supremacy to community law over inconsistent national law. Again, sometimes law students misunderstand this by saying community law takes precedent over national law. No, it doesn't. Community law takes precedent over inconsistent national law.

Speaker 1:

Now the incorporation of community law into UK domestic law was of course implemented by the enactment of the European Communities Act in 1972. Now the effect of Section 2, subsection 1 of the Act is that all provisions of community law which are intended to be directly effective or enforceable in the UK are given the force of law in the UK courts and tribunals. Now this applies to community law made both before and after the coming into the force of the 1972 Act. Now in the case of Bulman Bollinger in 1974, the court said that where we come to matters with a European element and again it is not that Europe or the European Court of Justice or the CJEU can deal with any matter it must be within the competences which have been given. Now, in matters relating to the EU, the treaty is arguably like an incoming tide. It flows into the estuaries and up the rivers and cannot be held back. That's what the Lord Denning said in Bulmer and Bollinger.

Speaker 1:

Now section 2.4 says that any enactment passed or to be passed shall be construed to have effect subject to the provisions in the section, and it talks about having effect subject to the foregoing provisions. Now, when it talks about the foregoing provisions, it is including section 2-1, which provides that directly effective community law shall be enforceable in the UK. Now, in respect of certain terms, I would urge you to listen to the EU law session in relation to public law, because it does make reference to what is meant by direct effect. It looks at direct applicability, but for now, to use a very kind of working definition, if something has effect, some community law provision has effect which can be relied on in the national court, then section two one says that these shall be enforceable in the UK. Now, section 2, subsection 4 amounts more or less to a statement that UK Acts of Parliament passed or to be passed must be construed and of effect, subject to directly effective community law.

Speaker 1:

Now, in the case of re-export tax on our Treasures no 2 in 1972, the European Court of Justice said that the provisions of the treaty place limitations on the sovereign powers of member states over which no appeal to provisions of international law of any kind can prevail, and so it was made clear that, as far as the ECJ is concerned, with regard to issues of European law, the doctrine of legislative sovereignty of Parliament has either been put into suspension or abolished in favour of a new legal order. Now you are going to get traditionalists who say that it certainly has not been abolished because again, an act of Parliament put it there. An act of Parliament can get rid of it. Now, as I say, this would of course go contrary to the traditional doctrine, as we have seen in Vauxhall Estates and Ellen Street Estate. In those cases we see the doctrine of implied repeal. Therefore, where a later statute is inconsistent with Section 2.4, section 2.4 should be impliedly repealed to the extent of the inconsistency. But what we have seen is that the courts have suggested that if it is that you have an act and I think this was tried by Mr Thoburn Thoburn and Sunderland District Council is a case where this was tried to say look, if the Weights and Measures Act say one thing and that Weights and Measures Act seems contrary to what is provided for in the EU, then there's implied repeal. And the court said no, not really. This is of such importance that it is highly likely that if you are going to impliedly repeal it, it would be a little bit more straightforward and clear.

Speaker 1:

Now in McCarthy's and Smith it's a 1979 case Lord didn't set out a way around any predicament which was to be followed by the court. Subsequently, he said if our legislation is deficient or is inconsistent with directly effective community law by some oversight of the draftsmen, then we are bound in duty to give priority to community law. Such is the result of sections 2, subsection 1 and 4 of the ECA 1972. Thus far, he says, I have assumed that our Parliament, whenever it passes legislation, intends to fulfil its obligations under the Treaty. If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it, or intentionally of acting inconsistently with it, and says so in express terms, then I should have thought it would be the duty of our courts to follow the statute of parliament. He then finishes off by saying I do not, however, envisage such a situation, and the interesting thing is, whenever you get questions on parliamentary sovereignty, one of the things that is raised is will the UK ever get to the point where it will withdraw from the EU? Well, commentators have said that it's not that they can't, because they can do so by an act of parliament, but arguably, what we would see is a constitutional nightmare. It's almost like saying you're so far along the continuum it is difficult to pull out, and that's what we see Lord Denning bringing to bear here when he says I do not envisage such a situation where we get a complete resiling of the obligation of the UK from what it has signed up to Now.

Speaker 1:

When you look at the doctrine, and certainly the doctrine of implied repeal, yes, if it is that an Act of Parliament comes on board, then definitely yes If it is in express terms that it says that the ECA is to be repealed. Parliament is supreme and that is why, whenever you're discussing this, you always maintain that, theoretically, parliament stands on the basis that it is supreme above everything else, that it is supreme above everything else. Even when you look at regulations which come into law, they only occur that way because of the ECA. That, in a nutshell, is a parliamentary sovereignty. But, as I say, I urge you to look at the EU lecture because it does go into more depth on this. We will, of course, finish on the impact that the HRA 1998 has on the traditional theory of parliamentary sovereignty.

Speaker 1:

Well, section 2.1a puts an obligation on courts and tribunals to take account of judgments, decisions, declarations and advisory opinions of the European Court of Human Rights. Now Section 3.1, which I mentioned in an earlier segment, where it tends, or appears to want to give a kind of soft form entrenchment. Section 3.1 provides, among other things, that acts of Parliament must be read and given effect in a way which is compatible with the European Convention on Human Rights, but it says it only needs to do that so far as it is possible. Now, this might seem to be no more than a reiteration of what our courts already do. So if you look at the cases, it tends to be what the courts are doing. So it seems like this is already in play when the courts are interpreting national law so as to avoid a conflict with the UK's international obligation wherever possible. However, it is anticipated that the UK courts will be more ready to render legislation compatible with the Convention if there is any loophole at all allowing them to do so, even if this means sometimes twisting it a little in respect of its natural meaning. Now, under Section 3.2a, it says that Section 3.1 applies to acts of Parliament whenever enacted. So, before or after. And this is where I'm asking is this a form of entrenchment, softly as it were, in that it is seeking to prevent the act from being impliedly repealed? Well, if so, will the courts give effect to it and therefore give it a status similar to that of other so-called constitutional statutes like the ECA. Well, it is thought that the UK courts will give it such a status Now under Section 4,.

Speaker 1:

Section 4 enables the High Court, court of Appeal, the House of Lords, to make a declaration of incompatibility if it is not possible to interpret the Act of Parliament in a way which is compatible with the Convention.

Speaker 1:

And, of course, all that the court can do is make a declaration of incompatibility. Now Section 10 is also an important section because it enables the government to amend an Act of Parliament against which a Section 4 declaration of incompatibility has been made, and this can be implemented by delegated legislation. So we see that between Section 4 and Section 10, we have a structure that ensures some degree of impact on the whole concept of parliamentary sovereignty. That, of course, brings me to the conclusion of this law session, and again I would urge you to consider having a view of not only the human rights lecture but also the ECA lecture, because between the two of them they go in far more depth, in order for you to understand how the interpretative obligations of the court, for example, and how the Human Rights Act impact parliamentary sovereignty, how the ECA impacts parliamentary sovereignty and answering any question, you need to be live to the contemporary issues which certainly bring to bear on parliamentary sovereignty.