Supremacy of EU law and UK Parliamentary Sovereignty

Supremacy of EU Law

 

The difference between Monism and Dualism

 

  •      Monism involves states making international law part of their domestic legal order.

 

  •      Dualism involves the member states to incorporate European law into national law before it can have any domestic effects.

 

The problem – Is parliamentary sovereignty no longer applicable if EU law is supreme?

 

Parliamentary sovereignty

 

  •      According to the orthodox theory of parliamentary sovereignty, Acts of Parliament are highest form of law known in the UK and the duty of courts is to give effect to them. It is unclear how UK parliamentary supremacy principle reconcile with EU supremacy principle.

 

Model I – Parliamentary Sovereignty as a Constitutional Fixture

 

  •      For Wade, there are two central truths about parliamentary sovereignty.

 

  1. The sovereignty of Parliament cannot be changed by legislation or any other legal means so it would be impossible to accept voluntarily limitations upon its sovereignty.

 

  1. The sovereignty of Parliament may be diminished through non-legal means. It involves courts acting unconstitutionally in refusing to recognise an Act of Parliament an enforceable law. 

 

Model II Parliament capable of controlling certain aspects of legislative process

 

  •       The new view contends that while Parliament cannot do anything that would cut down its sovereignty, it may require future Parliaments to comply with certain formal conditions when making law.

 

Model III EU law as substantive limit on Parliament’s law-making authority

 

  •      The third model rejects the first model by characterising the sovereignty of Parliament as a legal phenomenon rather than a purely political one.

 

  •      On this view, Parliament is a dynamic legal phenomenon.

  

Parliamentary sovereignty

 

According to Nick Barber, the rule could be expressed in simple terms such as: whatever the Queen-in-Parliament enacts as a statute is law.

 

 

The rule

 

  •       No institution within the constitution has the capacity to declare that a statute is beyond the power of Parliament.

 

What have the government said in relation to EU supremacy?

 

  • In 2020, Sir Ivan Rogers stated that “during transition the UK is still living under the laws of the European Union”. Also, that the UK “will need a free trade agreement that prevents further economic damage”.

 

Relevant Case Law:

 

Costa v Enel [1964] ECR 585

 

Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629

 

Van Gend en Loos v Nederlandse Administratie der Belastingen (26/62) [1963] ECR 1

 

R v Secretary of State for Transport, ex Parte Factortame (No 2) (1991) 1 AC 603

 

Thorburn v Sunderland City Council (2003) Q.B 151

 

Internationale Handelsgesellschaft (1970) 11/70