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“How is the relationship between EU law and member state law conceived by the CJEU, and how can this conception be reconciled with the sovereignty of Parliament in the UK?”
John Morgan
Trainee Solicitor, Brodies LLP, Glasgow
The sovereignty debate, so long the preserve of academics and fringe Eurosceptics, has been ignited in the last month by the referendum on EU membership to be held on 23 June. The Telegraph have declared sovereignty 'the issue set to dominate the EU referendum campaign”[1]. Yet the incompatibility between EU membership and Diceyan parliamentary sovereignty was not always acknowledged. During debates on the European Communities Bill in 1972 Lord Chancellor Hailsham vowed that “not merely that this bill does nothing to qualify the sovereignty of Parliament, but it could not do so”.[2]
Despite this, the UK in 1973 joined an organisation in which “member states have limited their sovereign rights, albeit within limited fields, and have thus created a body of law that binds both their nationals and themselves”.[3] For member states with codified constitutions, by an orthodox reading of EC law it is superior even to domestic constitutional law.[4] On the orthodox reading of sovereignty, the direct effect and supremacy of EU laws at first posed little difficulty for parliamentary sovereignty. These doctrines were only effective in the UK constitution subject to the existence of the ECA, and that should Parliament wish to block them it simply had to repeal that act.  Nevertheless, an assessment of the development of the constitution is prescient; especially as recent, revolutionary, decisions by UK domestic courts have thrown both traditional Parliamentary sovereignty and EU supremacy into doubt.
The initial tension
For many years, the British courts performed an admirable tightrope walk, utilising the ECA s.2(4) as a rule of construction to avoid inconsistency with EU law. Their fortune ran out in the famous Factortame case, in which the House of Lords could find no way to avoid finding that nationality requirements in the Merchant Shipping Act 1988 breached community obligations not to discriminate.[5] In finding that EU supremacy required the House of Lords to disapply an Acts of Parliament, Lord Bridge merely acknowledged that any limitation upon sovereignty brought about by EU membership was a limitation that Parliament had accepted 'entirely voluntarily'.
The reaction to Factortame varied – some viewed it as full revolution in which Diceyan sovereignty was now dead[6]; others merely treating EU supremacy as an 'exception' to continued sovereignty without fully establishing the theoretical roots of the exception.[7] The questions which Factortame posed for the orthodox understanding of sovereignty were largely justified through an acknowledgement that Parliament had, through the ECA, instituted a change to the 'manner and form' of its own sovereignty.
Yet as accepted as this was within academic circles, all but replacing full Diceyan sovereignty as the orthodox position, the courts managed to continue their admirable tightrope walk, avoiding the need to study the relationship in detail. This came to an end in Thoburn, in which Lord Justice Laws in the Court of Appeal, moved away from the Factortame approach in which EU supremacy had been the foundational principle, to one which looked foremost at the domestic roots of the relationship. In doing so, he suggested that there was a hierarchy of constitutional statutes which were not subject to the usual doctrine of implied repeal. While characterised as radical for its step away from the Diceyan principle that all statutes were equal, for the purposes of understanding the relationship between Parliamentary sovereignty and EU law Thoburn actually offered a useful theoretical characterisation to justify the ability of courts to strike down primary legislation which had been sorely lacking in Factortame.
Despite this many scholars reacted to Thoburn with accusations of activism. The question remained the subject of academic debate until the Supreme Court had the opportunity to consider the possibilities of 'constitutional legislation' in R (HS2 Action Alliance Ltd v Secretary of State for Transport.[8] The UKSC took full advantage of the opportunity, rejecting the Thoburn approach as oversimplistic. and building on obiter  statements from Jackson v Attorney General by Lady Hale, who stated that “courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny” and Lord Hope, who declared that “Parliamentary sovereignty is no longer, if it ever was, absolute... qualifications are themselves the product of measures enacted by Parliament. The [ECA] is perhaps the prime example”.[9]  In HS2, Lords Neuberger and Mance went further, rejecting the accepted principle from Factortame that the ECA requires national courts to afford EU law primacy over all domestic law, stating that “it is certainly arguable (and it is for United Kingdom law and courts to determine) that there may be fundamental principles, whether contained in other constitutional instruments or recognised at common law, of which Parliament when it enacted the [ECA] did not either contemplate or authorise the abrogation”.[10] Enactments which were elevated to this nature included the Magna Carta, the Bill of Rights, the Act of Union, and crucially the ECA.
There are several important consequences flowing from this. The first is the assertion that the relationship is fundamentally a question of domestic law. This is a simple but telling reassertion that EU law only has effect through the ECA. The second is that the Thoburn analysis in which the ECA as a constitutional statute could not be impliedly repealed was over-simplistic: instead embracing a view that there are varying degrees of constitutional fundamentality; that not all constitutional measures (importantly, not simply statutes or treaties but also common law norms) are equal. In establishing this, the Supreme Court also set Parliamentary sovereignty as simply one of a number of constitutional foundations of the UK constitution, alongside the Rule of Law and respect for fundamental rights.
The nature of this decision is revolutionary, both from a domestic constitutional perspective and for the repercussions on the relationship between domestic and EU law. The primacy of EU law, at least as a question of domestic law, is much more qualified than Factortame suggested. Given effect through a constitutional statute, EU law remains the beneficiary of a strong rule of construction which cannot be impliedly repealed by regular statute, but is now explicitly subject to more fundamental norms including the rule of law, fundamental rights, and parliamentary sovereignty itself. Crucially, the Supreme Court staked out its territory within the judgement: “it is for United Kingdom law and courts to determine” where such a competition occurs, and presumably to ascertain the normative importance of each measure to decide which takes precedence.
The Supreme Court, emboldened, continued the development of this strand in the Pham case in early 2015.[11] Here it declared that “unless the Court of Justice has had conferred upon it under domestic law unlimited as well as unappealable power to determine and expand the scope of European law, irrespective of what the Member States clearly agreed, a domestic court must ultimately decide for itself what is consistent with its own domestic constitutional arrangements, including in the case of the 1972 Act what jurisdictional limits exist under the European Treaties and upon the competence conferred on European institutions including the Court of Justice”.[12]
The BBC's deputy political editor James Landale memorably described this as the Supreme Court “very gently and very politely telling its counterpart in Luxembourg to go stick”.[13] In essence, the Supreme Court established that in the event that it found the CJEU to have misjudged the competence transferred to the EU under the treaties, domestic courts have the ability to declare as such and – presumably – to refuse to give effect to EU law.
The consequence of the HS2 and Pham decisions should not be understated. Together they amount to a fundamental reshaping, not just of the relationship between EU law and domestic law but that between Parliament and the courts and – crucially for the current question – UK courts and European law. The debate is no longer between two diametrically competing notions: parliamentary sovereignty or EU supremacy. Rather, both doctrines now sit within a richer tapestry in which Parliamentary sovereignty is but one central tenet of a grundnorm.
The political element of the constitution reacts
The radical nature of the HS2 decision does not yet seem to have filtered through to common understanding. The EU referendum has sparked discussion of numerous 'fixes' to mend Parliamentary sovereignty. It is worth dealing with each of these in turn, as they demonstrate the need for HS2 to be fully understood by the political actors of our constitution.
Lord President Michael Gove recently contemplated that the UK Supreme Court could be given freedom akin to that of the German constitutional court to “say that in certain areas EU law ran counter to certain British freedoms”. The German Constitutional Court (“FCC”) has famously asserted that, in a hypothetical conflict between community law and the German Constitution, the FCC retained the ability to give precedence to the German constitution.[14] The justifications given by the FCC in 1993 are remarkably similar to (albeit more complex than) the UKSC's assertion in HS2 that the balance between EU supremacy and domestic law is a question which can only be answered in domestic law.
Indeed it is possible that Lord Neuberger took stock of the German position in deciding HS2, having extrajudicially stated that the “German constitution enables a German court to say that German law sometimes trumps EU law”.[15] While remaining sceptical in that speech, his evocation of fundamental British norms in HS2 suggests he took succour from the German position. In any event, it is patently unnecessary for a statutory power to be granted to a Supreme Court which has, two years ago, established the power itself.
Meanwhile, the Prime Minister has mooted a new act putting beyond doubt the sovereignty of Parliament.[16] While prima facie an elegant solution, the weaknesses of this approach have been demonstrated by the inconsequential nature of the EU Act 2011's guarantee of sovereignty. The matter is inherently circular: an apparently sovereign parliament wouldn't make itself sovereign by declaring itself so. Indeed, the nature of such a declaration would be statutory; theoretically weaker than the now-common law doctrine of sovereignty which flows from the new grundnorm established in HS2.
In light of the developments emanating from the Supreme Court in the last two years, all of the above proposals seem late to the party: at best uninformed and at worst taking advantage of misunderstandings in order to offer unnecessary placation to Eurosceptics. As Lord Denning declared when considering the legal ramifications of the Statute of Westminster 1931, “legal theory must give way to practical politics”.[17] We live in an age of constitutional pluralism, with fundamental rights, Parliamentary enactments and international obligations vying for de facto precedence. Only when our politicians catch up with that aged collection of judges sitting just across Parliament Square who have, long overdue, rationalised the British constitution, will our political constitution truly reflect the rich tapestry that is modern sovereignty.
(1999 words)

[1]   Foster and Bennett, “British Sovereignty and Europe – the full facts”, The Telegraph, 26 February 2016
[2]   Per  Bogdanor, “Imprisoned by a doctrine: the modern defence of Parliamentary Sovereignty”, 2012 OJLS 179
[3]   Case 6/64 Costa v ENEL [1964] ECR 585 at 593
[4]   Case 11/70 Internationale Handelsgesellschaft v Einfur und Vorratstelle fur Getreide und Futtermittel [1970] ECR 1125
[5]   R (Factortame Ltd) v Secretary of State for Transport (No 2) [1991] 1 AC 603
[6]   Wade and Forsyth, Administrative Law (7th Edn) (Clarendon, Oxford, 1994) at 30
[7]   Oliver and Drewry, The Law and Parliament (1998) at 5
[8]   [2014] UKSC 3
[9]   [2005] UKHL 56
[10] Supra 9, at 207
[11] Pham v Secretary of State for the Home Department [2015] UKSC 19
[12] Ibid, at 90
[13] James Landale, BBC News, “Eu Referendum: Cameron's options for enhancing sovereignty”, 10 February 2016
[14] Brunner v Treaty on European Union [1994] CMLR 57
[15] Lord Neuberger, “The British and Europe”, Cambridge Freshfields Annual Law Lecture 2014
[16] BBC News, “David Cameron: There's 'a good case' for new sovereignty law”, 18 January 2016
[17] Blackburn v AG [1971] 1 WLR 1037












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