Lecture 24

Constitutionalisation of the Treaties

The European Union and

Parliamentary Sovereignty

Dr Jo Eric Khushal Murkens

LL 106 Public Law
2011-12

UK Membership of EU

Article 288 TFEU: EU Regulations are directly applicable in

each MS
European Communities Act 1972:
Section 2(1): rights and obligations under Treaties or EU
legislation to be given domestic legal effect.
Section 2(4): future UK legislation to be construed and
given effect subject to Section 2(1).
Section 3(1): interpretation and validity of EU measures as
questions of law to be determined in accordance with
rulings of ECJ.

ECA and Supremacy

Orthodox constitutional view: Parliament cannot bind its
successors. Courts must uphold latest will of Parliament.
Neither Parliament nor courts can change rules on priority.
What the statute itself enacts cannot be unlawful, because what the
statute says and provides is itself the law, and the highest form of law
that is known to this country. It is the law which prevails over every
other form of law
Cheney v. Conn [1968] 1 All ER 779, at 782, per Ungoed-Thomas J.

Common law constitutional view: sovereignty is in keeping

of the courts. Courts may alter rules on priority for good
reasons.

The new legal order.

Twin pillars of the constitutionalisation claim:
Direct Effect
Supremacy
Treaty of Rome (EEC) silent on issue of supremacy.
Judicially created: van Gend, Costa v Enel,
Simmenthal, Internationale Handelsgesellschaft.

Recap: Statutory Interpretation

Courts have traditionally interpreted narrowly legislation
which infringed common law rights.
Express terms required.
In interpreting statutes the courts will
a) Construct the statute literally to discover its
true meaning (the Literal Approach);
a) A court may depart from language of Act to
avoid absurd consequences (the Golden
Rule);
a) To correct a defect for which the common
law did not provide (the Mischief Rule);
a) If in doubt, look at intention of Parliament
when it enacted statute (the Purposive Approach).

Scenario 1
1. European Communities Act 1972
2. (ordinary) Act of Parliament on X
3. European Regulation on X
=> Uncontroversial in practice because of the
doctrine of implied repeal.

Scenario 2

Applying implied repeal:

Red Balloon Act
(2012)

Balloon Act or
EU (Balloon) Reg. (2017)

All balloons must

be red, and this
Act can never be
changed.

1. European Communities Act 1972

2. European Regulation (NB: directly effective!) on
X.
3. (ordinary) Act of Parliament on X.

Latex balloons may be blue.

So at time X, the Balloon Act 2017 will apply

because Parliament 2 is sovereign
and because the 2017 Act (or the EU
Regulation) implicitly repeals the 2012 Act.

A horizontal conflict (between two ordinary

Acts)?
A vertical conflict (Parliamentary sovereignty
vs supremacy of EU law)?

1. Statutory Construction and the ECA 1972

Work with your neighbour

Examine Scenarios 1 and 2 again.
1. Scenario 1 is uncontroversial in practice. What else
that might be controversial about it?
2. Do you understand the difference between a vertical
and horizontal conflict?
3. In whose favour should a vertical conflict generally
be resolved (national law? EU law?).

Lord Dennings dissent

In construing our statute, we are
entitled to look to the Treaty as
an aid to its construction; but
not only as an aid but as an overriding
force. If on close investigation it should appear that
our legislation is deficient or is inconsistent with
Community law by some oversight of our draftsmen
then it is our bounden duty to give priority to
Community law.

Macarthys v. Smith [1979] 3 All ER 325 (CA):

Lawton and Cumming-Bruce L.JJ:
1.
2.
3.
4.

Look at plain meaning of statutory language;

Consider EU law separately;
If EU law unclear -> Art 234 reference to ECJ;
If there is conflict, EU law prevails over national law.

2. Statutory construction and the common law

Garland v. British Rail
[1983] 2 AC 751
Lord Diplock:
it is a principle of construction of UK statutes, now too well
established to call for citation of authority, that the words of
a statute passed after the Treaty has been signed and dealing
with the subject matter of the international obligation of the
UK, are to be construed, if they are reasonably capable of
bearing such a meaning, as intended to carry out the
obligation, and not to be inconsistent with it.

Other pre-Factortame cases

Tendency to resolve apparent conflicts through
interpretative techniques:
Pickstone v Freemans [1989] AC 66: consider the
purpose of the legislation.
Litster [1990] 1 AC 546: court may depart from
strict/literal application of statutory words;

But some anxiety as how far to go with

interpretation:

Questions
It was argued in 1972 that nothing in the ECA abridged
the ultimate sovereignty of Parliament. Is that correct?
Was s.2(4) ECA 1972 sufficient constitutional
preparation for the incoming tide of EU law?
Does EU law render inconsistent national law void?
Lord Dennings dissent is at odds with the traditional
method of statutory interpretation. So why did later
courts decide to follow his approach?

Duke v. GEC Reliance [1988] AC 618

Further reading
Elliott and Thomas, Public Law 326-338.
A. Le Sueur et al, Public Law TCM (2010, pp.849875.
P. Craig, Britain in the European Union in J.
Jowell and D. Oliver, The Changing Constitution
(Oxford UP, 2011), pp.112-117.
D. Oliver, Constitutional Reform in the UK (2003),
pp.81-83.