The Influence of United Kingdom’s Membership of the EU on the Competence of British Parliament

Britain became an EU member in 1973. By 1972, it was clear that membership in the Community brought with it the requirement that domestic courts give European Law priority over conflicting rules of national law. Such a duty ran directly contrary to Parliamentary sovereignty; if a later statute conflicted with an earlier statute incorporating European Law into English Law, Parliamentary sovereignty required that the later statute impliedly repeal the earlier, incorporating statute. Parliament in 1972 did not, as it might have done, employ cunning constitutional lawyers to evade the problem by using one of the devices discussed in the previous paragraphs. It did not employ the language of the manner-and-form school or change the judicial oath. Rather, in section 2(4) of the European Communities Act 1972, it was asserted that statutes «shall be construed and shall have effect subject to the foregoing provisions of this section» – that is, subject to the incorporation of European Law into the British legal systems. This was a direct challenge to Parliamentary sovereignty, an attempt to impose a substantive limit on the effective legislative capacity of subsequent parliaments. In the period between 1972 and 1988, Parliament and the courts contrived to avoid a dispute in which the efficacy of the 1972 act would be tested. 28 Parliamen t strove to avoid legislating in conflict with European law. Indeed, it can be argued that a constitutional convention, a nonlegal constitutional rule, had emerged requiring that it not legislate in conflict with Community law. For their part, the judges zealously interpreted domestic legislation to avoid inconsistencies. In the case of Factortame, however, these devices ran out. Factortame is well documented and will not be surveyed here; in short, it turned on a conflict between a statutory provision found in the Merchant Shipping Act 1988, which provided that fishing boats could only be registered as British vessels if they were three-quarters owned by British companies and three-quarters of the company directors were British citizens, and a collection of duties imposed by European law not to discriminate on grounds of nationality. Also important judicial precedents in this area are e. g. Thoburn v Sunderland City Council Case, Amministrazionedellefinanzedello Stato v Simmenthal Case etc. It will be obvious that EU law emanating from the Treaty of Rome (and subsequent Treaties such as the Treaty of Lisboan 2007 which was incorporated into UK law by The European Court
of Justice has fundamentally qualified the concept of parliamentary sovereignty. Euro skeptical moods in the United Kingdom led to political policies that State to reintegrate with the EU. For example, Government UK plan to hold a referendum on secession from the EU by the end of 2017. One of the conditions the continuation of the United Kingdom’s membership of the EU is the resumption of parliamentary sovereignty.