A Guide to UK Constitutional Law: Part IV
UK and The European Union
In regard to the UK, it seems that arguably the European Communitites Act 1972 may have created a new constitutional arrangement. Thus an important question remains to be asked: is the Westminster Parliament still supreme, or has supremacy been transferred to to the European Community? The answer to this question may be found in the examination of the influence European Community on the British Constitution.
© Peter Cumper 2002
The timeline below shows a gradual expansion, integration and unification of the European Member States.
2000-2002 Soon to be a written EU Constitution?
The Institutions of Europe (Europe in general and the EU)
Also see: Institutions of the EU
The 5 main institutions of the Community are:
Other institutions which should not be confused with those above are:
In 1973 the UK entered the European Communities (as it was known then). The exercise by Parliament of its legislative supremacy in passing the European Communities Act 1972 brought about a very important change in the operation of Parliamentary supremacy. The purpose of the Act was to make European Community law necessary in the UK and the consequences of the Act are discussed below. With the widening of ‘European unity’ and the creation of a common EU foreign and defence policy arising out of the Maastricht Treaty on the European Union (1992) and the emphasis on co-operation in home affairs, it is easy to see that soon Community law will be legislating for most aspects of a UK citizen’s life. In reality, Community law has become the primary source of law in the UK.
Section 2(1) of the 1972 Act allows for Community law to be incorporated into the British legal system. Yet, it is arguably s.2(4) of the 1972 Act which gives supremacy to community law. It provides a new principle of interpretation, that the UK courts should interpret all UK legislation so as to avoid any possible conflict.
One of the important institutions in the EU is the European Court of Justice (ECJ), which sits at Luxembourg. The view of the ECJ is that the courts of the Member States should give supremacy to Community law. The case of Frankovich v Italy (cases 6 & C-90/90)  ECR I-5357 is not only an example of this but also shows a creation of rights and duties for individuals in EU Member States including Britain as a result of directly effective Community legislation. This in simple terms means that an individual can sue a State if a Directive of EC law is not implemented correctly. A Directive is secondary legislation of Community law, and they do not automatically bind the Member States. Subject to a certain period of time, the Member States can choose how a Directive is to be entered into their domestic law (unlike another type of secondary legislation known as Regulations which becomes law automatically in the UK, this means that no further legislation is necessary to be passed by Parliament: this is given authority under s.2(1) of the 1972 Act).
What has the attitude of the British courts been? The courts first took the view from the reading of the 1972 Act that there was a presumption that Acts of Parliament and Community law were of equal status and that the courts would uphold whichever was the latest intention of Parliament (a little like the new law taking over the old). However, in the case of R v Secretary of State for Transport, ex parte Factortame Ltd  2 AC 85 (HL) the courts finally accepted that Parliamentary supremacy in the UK had changed. In that case Lord Bridge stated that the 1972 Act made it clear that ‘it was the duty of a [UK] court, when delivering final judgment to override any rule of national law found to be in conflict with any directly enforceable rule of Community law.’ The courts are still not certain whether a Directive’s indirect effect is binding, however. Still, the Factortame case shows that the courts now have the power, when necessary, to order the temporary disapplication of any provision of national law that seems to conflict with Community law.
It is funny that even though the courts have no power to declare laws duly passed by Parliament as invalid or unconstitutional (except for Community law) it is the courts rather than Parliament itself which have formulated the principle which is the most important factor of the constitution of the UK, the supremacy of Parliament. Again ironically, some suggest that this is because Parliament is restrained by being politically moral, in that it will usually make laws for the needs of the people, which gives it unlimited power to legislate.
However, even if Parliament is supreme in theory, it can be seen in practice, and especially with the widening influence of the European Union, that there are more restraints than ever on Parliamentary supremacy. Along with issues such as human rights and public opinion, attention must be turned even more to the EU. This is because Community law has become the primary source of law in the UK. The results of the 1972 Act are a reduction of Dicey’s view of unlimited Parliamentary supremacy. The view that Parliament can also unmake any law (express repeal) has been taken away a little too, in that it cannot unmake the laws of the EU which has priority over an Act of Parliament. Of course it is still theoretically possible that at some future date the UK could repeal the 1972 Act and leave the EU. However, the political reality is that the longer it stays in the EU, the harder it will be for it to leave. Thus it seems that as a result of the 1972 Act, Parliament ‘by its own hands’ has given up some of its supremacy. How much has been given only time, and the courts, will tell.
© Ali Yýldýrým 2002
Send mail to
with questions or
comments about this web site.