Introduction
This essay will explain the development of law in the United Kingdom by interpreting the concept of 'independence' as the restoration of unqualified parliamentary sovereignty following the UK’s withdrawal from the European Union (EU). The principle of parliamentary sovereignty, which holds that the UK Parliament is the supreme law-making body, has been central to the UK’s constitution. However, membership of the EU from 1973 fundamentally altered this principle. This essay will explain the legal framework established by the European Communities Act 1972, examine the judicial recognition of EU law's supremacy, and conclude by discussing the legal changes enacted to restore parliamentary sovereignty after Brexit.
The European Communities Act 1972 and Parliamentary Sovereignty
The traditional constitutional doctrine of parliamentary sovereignty, as described by A.V. Dicey, states that Parliament has the power to create or abolish any law, and that no other body can override or set aside its legislation (Dicey, 1959). This principle was significantly challenged when the UK joined the European Economic Community (as it then was) in 1973. To give legal effect to the obligations of membership, Parliament passed the European Communities Act 1972 (ECA 1972).
Section 2(1) of the ECA 1972 was a crucial provision which automatically incorporated directly applicable EU law into the UK’s domestic legal system without the need for further legislation. More significantly, section 2(4) required that any UK law, whether passed before or after the ECA 1972, was to be interpreted and have effect subject to the requirements of EU law. This effectively created a mechanism for EU law to take priority over conflicting national statutes, representing a voluntary and statutory limitation on Parliament’s supremacy.
The Supremacy of EU Law: Factortame
The tension between parliamentary sovereignty and EU law supremacy was directly addressed in the landmark case of R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] 1 AC 603. The case concerned the Merchant Shipping Act 1988, a UK statute which imposed nationality requirements on the owners of British fishing vessels. This Act conflicted with the non-discrimination provisions of EU law. The House of Lords, as the highest UK court at the time, sought a ruling from the European Court of Justice (ECJ). The ECJ ruled that a national court must set aside any rule of national law that prevents it from granting interim relief to protect rights under EU law.
Following this, the House of Lords took the unprecedented step of granting an injunction that effectively suspended or ‘disapplied’ the relevant sections of the Merchant Shipping Act 1988. Lord Bridge stated that the UK had voluntarily accepted the limitation of its sovereignty when it enacted the ECA 1972. The Factortame case demonstrated in practice that, for as long as the ECA 1972 remained in force, UK courts would give precedence to EU law over an Act of Parliament. This period did not destroy sovereignty, but rather saw it being ‘pooled’ or limited by Parliament’s own will (Wade, 1996).
Legal 'Independence' and the EU (Withdrawal) Act 2018
The UK’s vote to leave the EU in 2016 led to the passing of the European Union (Withdrawal) Act 2018 (EUWA 2018), which was designed to manage the legal transition. The primary effect of the EUWA 2018 was to repeal the ECA 1972 on ‘exit day’ (31 January 2020). This act of repeal was, in itself, an exercise of parliamentary sovereignty.
With the repeal of the ECA 1972, the mechanism giving EU law its supreme status within the UK was removed. Section 5 of the EUWA 2018 explicitly states that the principle of the supremacy of EU law no longer applies to any law passed on or after exit day. To avoid a legal vacuum, the Act also created a new category of domestic law known as ‘retained EU law’, which preserved most EU-derived law as it stood at the moment of exit. However, this body of law is now part of the UK’s domestic legal framework and can be amended or repealed by the UK Parliament like any other statute. This marks a full restoration of the traditional Diceyan model of parliamentary sovereignty.
Conclusion
In conclusion, the development of UK law in relation to its 'independence' from the EU has been a circular journey for the doctrine of parliamentary sovereignty. The ECA 1972 voluntarily ceded legal supremacy to the EU, a position confirmed and enforced by the judiciary in cases like Factortame. The decision to leave the EU and the subsequent enactment of the EU (Withdrawal) Act 2018 reversed this process. By repealing the ECA 1972, Parliament reasserted its position as the ultimate and unqualified source of law in the United Kingdom, bringing the legal system back into line with the traditional understanding of its constitution.
References
- Dicey, A.V. (1959) An Introduction to the Study of the Law of the Constitution. 10th edn. London: Macmillan.
- R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] 1 AC 603.
- Wade, H.W.R. (1996) 'Sovereignty—Revolution or Evolution?' Law Quarterly Review, 112, pp. 568-578.
- European Communities Act 1972.
- European Union (Withdrawal) Act 2018.
