Parliamentary Sovereignty 2

European Communities Act 1972

Statute that incorporated EU law into UK domestic law.

Section 2(1) ECA

EU law became directly effective in UK law without further legislation.

Section 3(1) ECA

UK courts must follow interpretations of EU law made by the European Court of Justice.

Section 2(4) ECA

UK legislation must be interpreted subject to EU law obligations.

Costa v ENEL

Established the supremacy of EU law over conflicting national law.

Factortame case

UK courts disapplied provisions of the Merchant Shipping Act because they conflicted with EU law.

Significance of Factortame

Demonstrated that courts could suspend Acts of Parliament where required by EU law.

Thoburn v Sunderland City Council

Introduced the concept of constitutional statutes that cannot be repealed by implied repeal.

Constitutional statutes

Important statutes (e.g. ECA 1972, HRA 1998) that require express repeal.

Impact of EU membership on sovereignty

Parliamentary sovereignty was limited in practice because EU law took priority through the ECA.

Brexit reflection on sovereignty

EU supremacy existed because Parliament voluntarily accepted it through the ECA and could repeal it.

Devolution

Transfer of legislative powers from Westminster to devolved legislatures such as Scotland, Wales and Northern Ireland.

Reserved matters

Policy areas kept under the authority of the UK Parliament rather than devolved legislatures.

Legal effect of devolution

Westminster remains legally sovereign and can legislate for devolved areas.

Sewel Convention

Westminster will not normally legislate on devolved matters without consent of devolved legislatures.

Nature of the Sewel Convention

Political convention rather than legally enforceable rule.

Human Rights Act 1998

Statute incorporating European Convention rights into UK domestic law.

Section 2 HRA

Courts must take into account Strasbourg jurisprudence when interpreting Convention rights.

Mirror principle

UK courts should generally keep pace with Strasbourg case law but not go further.

Section 3 HRA

Courts must interpret legislation, so far as possible, in a way compatible with Convention rights.

Impact of Section 3

Allows courts to adopt strong interpretive techniques to ensure legislation complies with ECHR rights.

R v A (Complainant’s Sexual History)

Court interpreted legislation to allow evidence necessary for a fair trial under Article 6.

Limit of Section 3 interpretation

Courts cannot interpret legislation in a way that contradicts the fundamental purpose of the statute.

Section 4 HRA

Courts may issue a declaration of incompatibility if legislation conflicts with Convention rights.

Effect of declaration of incompatibility

Does not invalidate the statute but signals to Parliament that the law breaches human rights.

Purpose of Sections 3 and 4 HRA

Provide mechanisms for protecting rights while preserving parliamentary sovereignty.

Overall impact of the HRA

Strengthened rights protection while leaving ultimate legislative authority with Parliament.