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Parliamentary sovereignty and the challenge of European community law in the United Kingdom Fleming, Paul Daniel Richard 1992

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PARLIAMENTARY SOVEREIGNTY AND THE CHALLENGE OF EUROPEANCOMMUNITY LAW IN THE UNITED KINGDOMbyPAUL DANIEL RICHARD FLEMINGB.A., Queen’s University, 1987A THESIS SUBMITTED IN PARTIAL FULFILLMENT OFTHE REQUIREMENTS FOR THE DEGREE OFMASTER OF ARTSinTHE FACULTY OF GRADUATE STUDIESDepartment of Political ScienceWe accept this thesis as conformingto the required standardTHE UNIVERSITY OF BRITISH COLUMBIASeptember 1992© Paul Daniel Richard Fleming, 1992In presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.Department of tjc4L cccecThe University of British ColumbiaVancouver, CanadaDate (‘12.DE-6 (2/88)(ii)AbstractThe omnipotence of Parliament is one of the cardinal features of the British Constitution.It has traditionally been believed to consist of the dual propositions that there is no subject onwhich the Queen-in-Parliament may not legislate and, that no Parliament may bind a successor.Despite periodical challenges, the doctrine had crystallized into orthodoxy by the 19th century.Inasmuch as anything in British constitutional law is definite, the existence of the doctrine ofparliamentary sovereignty seems secure. However, this apparent security masks a vigorousdebate among commentators over what the doctrine actually means today. The debate has beenfuelled by the implications arising out of Britain’s accession to the European Community (EC),which views its own legal order as overriding any conflicting laws of its constituent memberstates. Some two centuries after becoming established as orthodoxy, the doctrine ofparliamentary sovereignty is now facing its greatest test. The current legal situation created byBritain’s membership in the EC poses the greatest threat to the doctrine’s theoretical usefulnessin explaining the British constitution as it actually operates today. It is argued that the presentdoctrine of parliamentary sovereignty, in light of the EC, means no more than that the UnitedKingdom retains the right of total withdrawal from the EC and that this right is vested in theQueen-in-Parliament as a result of Britain’s constitutional history. The traditional notion ofparliamentary sovereignty, which encompassed far more than a simple equivalence ofparliamentary and national sovereignty, has been overtaken by new political and legal facts.(iii)Table of ContentsAbstractList of AbbreviationsAcknowledgements.IntroductionChapter 1: Parliamentary Sovereignty in the United KingdomTheoretical Foundations: Alternative Views of Parliamentary SovereigntyInstitutional Foundations: The Common-Law Basis of the DoctrineChapter 2: The Birth and Growth of the Community 21.11iv14Historical DevelopmentBritain’s Road to AccessionThe Institutions of the European CommunityChapter 3: The Community Legal OrderSources of Community LawCommunity Law as an Independent Legal OrderThe Primacy of Community LawDirect Applicability and Direct EffectCommunity Secondary LegislationChapter 4: Community Law in the United KingdomIncorporation of Community Law into the United Kingdom LegalThe European Communities Act 1972The Supremacy IssueThe Courts Respond: The Factortame SagaChapter 5: The Politics of Sovereignty in the United Kingdom Today . .The EC in British Politics TodayThe Sovereignty Issue in British Politics TodayConclusionBibliographyAppendix A21273645454748525358System:596368777889105111121(iv)List of AbbreviationsA.C. Law Reports Appeal CasesAll E.R. All England Law ReportsBYIL British Yearbook of International LawC.A. Courtof AppealCh. Chancery Division of the High CourtC.L. Current LawC.L.J. Cambridge Law JournalC.L.R. Commonwealth Law ReportsC.L.Y. Current Law YearbookC.M.L.R. Common Market Law ReportsC.M.L. Rev. Common Market Law ReviewCmnd. Command Paper (UK)Co. Rep. Coke’s King’s Bench ReportsCranch. Cranch’s United States Supreme Court ReportsD.L.R. Dominion Law ReportsE.C.R. European Court ReportsE.J.I.L. European Journal of International LawE.L. Rev. European Law ReviewF.O. Foreign OfficeH.C. Deb. House of Commons DebatesH.L. House of LordsH.L. Deb. House of Lords DebatesI.C.J. Rep. International Court of Justice ReportsI.C.L.Q. International and Comparative Law QuarterlyJ.P. Justice of the Peace (Weekly Cases)Jur. Rev. Juridical ReviewK.B. Kings BenchLloyd’s Rep. Lloyd’s Law ReportsL.Q. Rev. Law Quarterly ReviewM.L.R. Modern Law ReviewN.I.L.Q. Northern Ireland Law QuarterlyN.L.J. New Law JournalO.J. Official Journal of the European CommunitiesQ.B. Queen’s Bench Division of the High CourtS.A. South African Law ReportsThe Times The Times of LondonW.L.R. Weekly Law ReportsY.E.L. Yearbook of European Law(v)AcknowledgementsThe preparation of a graduate thesis usually requires the help of other people. This thesis wasno exception. Special thanks to Professor Diane Mauzy for her important guidance. Everhelpful, her insight was consistently marked with alacrity and candour. Professor Jean Laponcecontributed to the completion of this project by devoting some of his valuable time to participatein the examining committee. Ms. Mary Luebbe at the government documents division of theUniversity of British Columbia Library proved helpful time and time again, as did the staff ofthe university law library. I am also grateful to Richard and Eileen Fleming, who have taughtme, among other things, that in seeking the truth I shall find wisdom. My final words of thanksare reserved for a special friend, Liana Te, who, throughout her tireless work in the preparationof my drafts, displayed a level of efficiency and patience which was inspirational.1The [EEC] Treaty is like an incoming tide. it flows into theestuaries and up the rivers. It cannot be held back.’-- Lord DenningIntroductionThe omnipotence of Parliament, or parliamentary sovereignty2,is one of the cardinalfeatures of the British constitution.3 The sovereignty of Parliament as a doctrine ofconstitutional law means that there are no legally enforceable limits to the legislative authorityof the Westminster Parliament. The courts interpret and apply Acts of Parliament, but, in theabsence of any written constitution for the United Kingdom to impose limits upon Parliament’s‘Bulmer v. Bollinger, [1974] Ch. 401.2 In this thesis, the terms ‘parliamentary sovereignty’ and ‘parliamentary supremacy’ areused synonymously.‘ The British constitution is usually considered as consisting of both the unwrittenconventions on the workings of government that have developed over the centuries, and ofcertain written documents of great importance, such as the Magna Carta of 1215, and the Billof Rights of 1688. The precise contemporary composition of the constitution, however, isimpossible to determine authoritatively. As the late Conservative Prime Minister StanleyBaldwin once said:The historian can tell you probably perfectly clearly what the constitutionalpractice was at any given period in the past, but it would be very difficult for aliving writer to tell you at any given period in his lifetime what the constitutionof the country is in all respects, and for this reason.. . there may be one practicecalled “constitutional” which is falling into desuetude, and there may be anotherpractice which is creeping into use but is not yet constitutional.Quoted in W.I. Jennings, Cabinet Government, 3rd ed., (Cambridge: Cambridge UniversityPress, 1959) at 12.2powers, they may not review the validity of legislation. The law relating to the powers ofParliament derives from obiter dicta of judges4 and the writing of jurists and, hence, therelevant rules are usually classified as rules of ‘common law’. In reality they are sui generis;it is by no means conceded that Parliament can alter these rules as it can other rules of thecommon law and it would only exacerbate the confusion about the nature of parliamentarysupremacy if any importance is attached to the fact that these rules are classified as part of the‘common law’5.The ultimate rule of the British constitution is that the supreme legislative power restsin the “Queen-in-Parliament”, comprised of the House of Commons, House of Lords and theQueen, theoretically sitting together6 but in fact sitting separately. The doctrine ofparliamentary sovereignty has traditionally been believed to consist of the dual propositions thatthere is no subject on which the Queen-in-Parliament may not legislate, except that noParliament may bind a successor. Although by no means unchallenged historically,7 thedoctrine had crystallized into orthodoxy by the nineteenth century. It was most recentlyreaffirmed in 1974, in British Railway Board v. Pickin8 In that case, Lord Simon of Glaisdale,“For a collection of these dicta, see, O.H. Phillips, Constitutional and Administrative Law,7th ed., (London, Sweet and Maxwell, 1987) at 47-48.G. Winterton, ‘The British Grundnorm: Parliamentary Sovereignty Re-examined’, (1976)92 L.Q. Rev, at 592.6 W.I. Jennings, The Law and the Constitution, 4th ed., (London, University of LondonPress, 1952) at 137-138.7W.S. Holdsworth, A History of English Law, 3rd ed., 17 vols., (London: Methuen, 1945),vol.10, at 527-3 1. (Hereafter, cited as Holdsworth).8 British Railway Board v. Pickin, [1974] 2 W.L.R. 208 (H.L.). See, infra, chapter 1.3in concurring with the majority opinion of the House of Lords9, stated:The system by which, in this country, those liable to be affected by generalpolitical decisions have some control over the decision-making is Parliamentarydemocracy. Its peculiar feature in constitutional law is the sovereignty ofParliament. This involves that, contrary to what was asserted sometime beforethe eighteenth century, and in contra-distinction to some other democraticsystems, the courts in this country have no power to declare enacted law to beinvalid.10British Commentators have universally interpreted this case as a strong reaffirmation bythe House of Lords of the traditional doctrine of parliamentary sovereignty. Current Britishtextbooks on constitutional law invariably cite Pickin as authority for the proposition thatparliamentary sovereignty remains a cornerstone of the British constitutional structure.1’Thus, inasmuch as anything in British constitutional law is definite, the existence of thedoctrine of parliamentary sovereignty seems secure. However, this security masks a vigorousIn a judicial context, the House of Lords refers to the nine English and two Scottish Lordsof Appeal, popularly known as Law Lords, who serve as the final court of appeal for thedecisions of most British courts. The Law Lords hear cases in panels of five and decide aboutfifty cases a year. Although the remaining 1100-odd Lords retain the nominal right toparticipate in judicial proceedings, they refrain from doing so by longstanding convention.The other important courts in the English judicial hierarchy are the High Court, theCrown Courts, and the Court of Appeal, Civil and Criminal Divisions. The High Court hearscivil cases involving sums higher that the County Courts are competent to hear, and is dividedinto three divisions - the Queen’s Bench Division, the Chancery Division and the FamilyDivision. The Crown Courts deal with serious criminal offenses. The Court of Appeal receivesappeals from all these courts in its relevant Division. The High Court and the Court of Appealare collectively known as the Supreme Court of Judicature. Separate court systems exist inScotland and Northern Ireland which converge with the English system at the House of Lordslevel. See, S.H. Bailey and M.J. Gunn, The Modern English Legal System, (London: Sweetand Maxwell, 1991), c.2.10 Pickin, loc.cit. at 798.“ See, for example, D.L. Keir et al., Cases in Constitutional Law, (Oxford: Clarendon,1979) at 23.; O.H. Phillips, loc.cit. at 52.; E.C.S. Wade and C.G. Phillips, Constitutional andAdministrative Law, 9th ed. (London: Longman, 1972) at 71.4debate among commentators over what the doctrine actually means today. This debate has beenfueled by the implications arising out of Britain’s accession to the European Community (EC),an organization that views its own legal order as overriding any conflicting laws of itsconstituent member states.British membership in the European Community makes it inevitable that Britain, like herco-members, must squarely face the prospect of Community law prevailing over inconsistentdomestic legislation. The constitutional issues raised by the United Kingdom’s membership inthe European Community remain unresolved. This makes timely a reconsideration of the natureof the British constitution. This thesis assesses the impact of the United Kingdom’s membershipof the European Community on the fundamental British constitutional doctrine of parliamentarysovereignty. More specifically, the aim of this essay is to examine how, and to what extent,primacy is accorded to Community law and to see if the words of reassurance given in 1972proved to be correct, that “nothing in the European Communities Act 197212 abridges theultimate sovereignty of Parliament:13,or whether we are witnessing the complete or partialdemise of what A.V. Dicey termed as the “very keystone”’4of constitutional law and politics.It is argued in this thesis that the vigour of the traditional doctrine of parliamentary sovereignty12 European Communities Act 1972. The Preamble states:An Act to make provision in connection with the enlargement oftheEuropean Communities to include the United Kingdom, togetherwith (for certain purposes) the Channel Islands, the isle of Manand Gibraltar.The Act gave legal effect to the treaty obligations of membership in the European Communityin United Kingdom courts. See, infra, chapter 4.13 Sir G. Rippon, 831 H.C. Deb. (15 February, 1972) at 278.“ A.V. Dicey, The Law of the Constitution, 10th ed., (London: MacMillan, 1965) at 70.5has been considerably vitiated by the effects of the United Kingdom’s accession to the EuropeanCommunity. Further, it is suggested that the sovereignty of Parliament is not immutable andthat the doctrine will be increasingly called into question as European integration developsfurther.Understanding how the United Kingdom’s membership in the European Communityaffects the doctrine of parliamentary sovereignty requires an understanding of Britain’s positionwithin the context of the EC. Accordingly, Chapter 2 examines the primary forces which laybehind the impetus for European integration and Britain’s eventual accession to the EC, andprovides an overview of the institutional organs of the European Community which have beenso vital to the Community’s continued existence. Chapter 3 completes the picture by providingan overview of the new Community legal order that has emerged. Specifically, the sources ofCommunity law and the twin pillars of the Community legal order -- the doctrine of ‘primacy’and the twin doctrines of ‘direct applicability’ and ‘direct effect’ -- are examined. Chapter 4investigates the impact that Community law has had in the United Kingdom as a result ofBritain’s membership in the EC. Here, the European Communities Act is examined and theissue of supremacy arising from the 1972 Act, and its implications for the idea of parliamentarysovereignty, are discussed. Subsequently, in an analysis of recent British case law on thesubject, most notably in the Factortame litigation, it will be illustrated that the British courtshave shown a considerable degree of willingness to move away from the traditional formulationof parliamentary sovereignty. Chapter 5 moves beyond the traditional legalistic principle ofparliamentary sovereignty and explores the wider dimensions of the doctrine as an issue inBritish politics today. In light of the above chapters, the Conclusion speculates on the doctrine’s6theoretical usefulness in explaining the British constitution as it actually operates today.Like other doctrines of the Common law, the British constitutional rules, have, at allstages of their development, reflected the practical political realities in the Kingdom.15 It istherefore appropriate that our analysis should begin with a brief treatment of the history of theevolution of the rule of parliamentary supremacy. Accordingly, i now turn, in Chapter 1, tothe theoretical and institutional foundations of the sovereignty of the United KingdomParliament.15 J.D.B. Mitchell, Constitutional Law, 2nd ed., (Edinburgh: Scottish Universities LawInstitute, 1968) at 70.7Chapter 1: Parliamentary Sovereignty in the United Kingdom‘The sovereignty of Parliament’ is an evocative phrase. In an important but impreciseway, it may be thought to express the democratic ideal - that the Palace of Westminster, and uiparticular the debating chamber of the House of Commons, should exercise greater publicauthority than other centres of governmental and political power. Only the House of Commonsconsists of elected representatives: election thus gives legitimacy to the legislative process andto the whole structure of government. Now, whether Parliament today occupies this centralplace in the structure of government is a different matter. But from a constitutional perspective,the doctrine of the sovereignty of Parliament has a much more specific meaning, which providesa formal base to the system by which laws are made and applied.Since the publication in 1885 of A.V. Dicey’s The Law of the Constitution, thesovereignty of Parliament has been accepted as one of the fundamental doctrines of constitutionallaw in the United Kingdom. The purpose of this chapter is to examine the theoretical andinstitutional foundations of the doctrine. Discussion in this chapter will be confined to the legaldoctrine of sovereignty. No attempt will be made to answer the question of where ‘political’sovereignty lies, if indeed that question is one that can be answered with precision. The doctrineof legislative sovereignty does not in itself imply any particular degree of democracy in theparliamentary structure, or any particular electoral system.Theoretical Foundations: Alternative Views of Parliamentary SovereigntyAs with many other features of British constitutional law, parliamentary sovereignty is8derived from the dicta of judges and the writings of jurists, especially jurists connected withOxford University.’6 Chief among these jurists was the late nineteenth century VinerianProfessor of Law, A.V. Dicey. Professor Dicey’s formulation of the doctrine of parliamentarysovereignty can be found in his authoritative Law ofthe Constitution. Having defined Parliamentas the Queen, the House of Lords and the House of Commons “acting together”, he said that“Parliament thus defined has, under the English constitution, the right to make or unmake anylaw whatever, and further, no person or body is recognized by the law of England as having aright to override or set aside the legislation of Parliament.”’7 In other words, there are no legallimits to the legislative authority of Parliament. When that authority is exercised in the formof an Act of Parliament, no court or other body has power to hold such an Act to be void orinvalid or in any respect lacking in legal effect.For Dicey, a necessary corollary of this definition is that a Parliament cannot bind itssuccessors in any manner, whether procedural or substantive.18 As he notes “A sovereignpower cannot, whilst retaining its sovereign character, restrict its own powers by any particularenactment... ‘Limited sovereignty’, in short, is in the case of a Parliamentary as of every othersovereign, a contradiction in terms.”19 In this view, then, the provisions of a later act, insofar16 R.F.V. Heuston, Essays in Constitutional Law, 2nd ed., (London: Steven and Sons, 1964)at 1.17 A.V. Dicey, loc.cit. at 39-40.18 Although it seems clear that Dicey was primarily concerned with the absence of anyjudicially enforceable substantive limitations on the power of the British Parliament, rather thanthe absence of any judicially enforceable procedural limitations on its power, his formulationof the doctrine has generally been taken to cover both.‘ Ibid., p. 73.9as they are inconsistent with an earlier act, must prevail.Professor H.W.R. Wade, in his well-known treatise The Basis of Legal Sovereignty,defends Diceyan orthodoxy, maintaining that the “United Kingdom Parliament is, in the eyes ofthe English courts, a continuously sovereign legislature which cannot bind its successors as to‘manner and form’2°or anything else”. The truth, he asserts, is that there is an ‘ultimate legalprinciple’ or ‘grundnorm’ that judges will obey statutes and that Acts of Parliament have forceof law.2’ No statute can establish that rule; equally no statute can alter or abolish that rule.Dicey’s formulation of the doctrine has come under challenge from a number ofconstitutional scholars, particularly in the last half of this century.22 But it has to this dayalways been the preferred formulation of the courts in the United Kingdom.23 Althoughchallenges to the validity of legislation enacted by the Parliament of the United Kingdom havebeen few and far between, the courts have consistently rejected those that have been brought.20 The term ‘manner and form’ appears to have its origins in section 5 of the Colonial LawsValidity Act, 1865 (U.K.) which authorized colonial legislatures to amend their constitutionsbut stipulated that such amendments had to be made “in such manner andform as mayfrom timeto time be required by any Act of Parliament. . . for the time being in force in the said colony”(emphasis added). The effect of section 5 was to condition the validity of such amendments onthe observance by the colonial legislature of requirements relating to both the manner (orprocedure) by which and the form in which such amendments were to be made. The term refersto the procedures by which legislation is enacted rather than to the content (substance) of thelegislation itself.21 H.W.R. Wade “The Basis of Legal Sovereignty”, [1955] U 172 at 190.22 These scholars include W.I. Jennings, loc.cit., c.4.; R.F.V. Heuston, loc.cit., c.l.;J.D.B. Mitchell, loc.cit. at 74-82.; and S.A. de Smith, Constitutional and Administrative Law,4th ed. (Harmondsworth: Penguin, 1985) at 97-101.23 See for example, Vauxhall Estates Ltd v. Liverpool Corporation, [1932] 1 K.B. 733; EllenStreet Estates Ltd v. Minister of Health, [1934] 1K.B. 590; British Coal Corporation v. ,[1935] A.C. 500; and British Railways Board v. Pickin, loc.cit.10A good example is the decision in Manuel v. Attorney General,24 which arose out of thepatriation of Canada’s constitution in the early 1980s. The challenge in that case was to thevalidity of the Canada Act 198225 and was based on the contention that section 4 of the Statuteof Westminster26imposed on the Parliament of the United Kingdom a binding requirement that,before it enacted legislation intended to apply in Canada, it had to have the consent of theaboriginal peoples of Canada, whose consent in this instance had been lacking.27 Thatcontention was summarily rejected by Lord Justice Megarry who said that “from first to last Ihave heard nothing in this case to make me doubt the simple rule that the duty of the court isto obey and apply every Act of Parliament, and that the court cannot hold any such Act to beultra vires. It is fundamental of the English constitution that Parliament is supreme.”28 In1974, Lord Morris summarized the reasons for this view in the well known Pickin case:It is the function of the courts to administer the laws which Parliament hasenacted. In the processes of Parliament there will be much consideration whethera bill should or should not in one form or another become an enactment. Whenan enactment is passed there is finality unless and until it is amended or repealedby Parliament. In the courts there may be argument as to the correctinterpretation of the enactment: there must be none as to whether it should be on24 [1983] Ch.77 (C.A.).25 (U.K.), 1982, c.l1.26 (U.K.), 22 Geo. 4 c.4. Section 4 provides as follows:No Act of Parliament of the United Kingdom passed after the commencement ofthis shall extend, or be deemed to extend, to a Dominion as part of the lawof that Dominion, unless it is expressly declared in that Act that that Dominionhas requested, and consented to, the enactment thereof.27 They argued that at least insofar as Canada was concerned, “Dominion” should be readto include inter alia the Indian nations of Canada.28 Manuel, loc.cit. at 89.11the statute book at all.29In contrast to the ‘traditional’ conception of Parliamentary sovereignty formulated byDicey and the neo-Diceyans, a more modem rationale of the doctrine, often referred to as the‘new view’, can be seen in the writings of Jennings, Heuston, Mitchell and de Smith.3° Onthis view, while Parliament cannot impose limits on the content of legislation of futureParliaments, it can change the manner and form in which it legislates so that future Parliamentsare bound by a “manner and form” requirement.One of the first constitutional scholars to challenge Dicey’s formulation of the doctrinewas Sir Ivor Jennings. At the heart of his critique was the contention that Dicey’s formulationleft unanswered the question of what constituted a valid expression of the will of Parliament.When one did answer it, one was driven to conclude that the doctrine as Dicey had formulatedit was unacceptable. The reason that was so was that, for Jennings, that question was a questionof law and, as such, was one over which Parliament itself had control. He expressed the reviseddoctrine of parliamentary sovereignty to which this reasoning led him on the following terms:‘Legal sovereignty’ is merely a name indicating that the legislature has for thetime being power to make laws of any kind in the manner required by the law.That is, a rule expressed to be made by the King, “with the advice and consentof the Lords spiritual and temporal, and Commons in the present Parliamentassembled, and by the authority of the same” will be recognised by the courts,including a rule which alters this law itself. If this is so, the ‘legal sovereign’may impose legal limitations upon itself, because its power to change the lawincludes the power to change the law affecting itself.... The law is thatParliament may make any law in the manner and form provided by the law. Thatmanner and form is provided, at present, either by the common law or by theParliament Act of 1911. But, Parliament may, if it pleases, provide another29 See Pickin, loc.cit. at 789.30 Loc.cit., supra.12manner and form. Suppose, for instance, that the present Parliament enacted thatthe House of Lords should not be abolished except after a majority of electors hadexpressly agreed to it, and that no Act repealing that Act should be passed exceptafter a similar referendum. There is no law to appeal to except that Act. TheAct provides a new manner and form which must be followed unless it can besaid that at the time of its passing that Act was void or of no effect.3’Professor Heuston, writing in the early 1960s, summarized Jennings ‘New View’ ofparliamentary sovereignty, to which he subscribed, in the following terms:(1) Sovereignty is a legal concept: the rules which identify the sovereign andprescribe its composition and functions are logically prior to it.(2) There is a distinction between rules which govern, on the one hand, (a) thecomposition, and (b) the procedure and, on the other hand (c) the areas of power,of a sovereign legislature.(3) The courts have jurisdiction to question the validity of an alleged Act ofParliament on grounds 2(a) and 2(b), but not on ground 2(c).32In support of this alternative formulation of the doctrine of parliamentary supremacy,both Heuston and Jennings relied on the decision of the Privy Council Attorney General. NewSouth Wales v. Trethowan,33 in which the legislature of New South Wales was held to bebound by a self-imposed manner and form requirement.34 The fact that the decision appearedto have been based on a provision of the Colonial Laws Validity Act. 1865, a statute to whichthe Parliament of the United Kingdom was not subject, was in their view, of little concern. But“ Jennings, loc.cit. at 147-149.32 Heuston, loc.cit. at 6-7.[1932] A.C. 526.“ The requirement in that case stipulated that no bill to abolish the upper house of the statelegislature could be presented for Royal Assent without first being approved in a publicreferendum. To protect that requirement from repeal by simple majority vote, the legislationalso stipulated that a bill repealing it had to be approved in a referendum. The case arose whena future legislature purported both to repeal the legislation embodying the requirements and toabolish the upper house without holding referenda.13it is clear from both Jenning’s and Heuston’s discussion of this issue that their preference forthis revised formulation of the doctrine lay not in the fact that there was a decision of the PrivyCouncil that appeared to support it,35 but in the simple and highly appealing logic upon whichit was based.Regardless of which of the views of parliamentary sovereignty one subscribes to, thefundamental relationship that exists between the courts and the legislature (namely, that thecourts must accept as law any Act of Parliament) presents a strong contrast with those countriesin which a written constitution imposes limitations upon the powers of the legislature, and wheresuch limitations may be enforced by the courts. In 1803 this power of judicial review oflegislation was declared to be a fundamental rule of the United States Constitution by theSupreme Court in a famous and influential decision. Marbury v. Madison. As Chief JusticeMarshall said then:The constitution is either a superior paramount law, unchallengeable by ordinarymeans, or it is on a level with ordinary legislative acts, and like other acts, isalterable when the legislature shall be pleased to alter it. If the former part of thealternative is true, then a legislative act contrary to the constitution is not law; ifthe latter part be true, then written constitutions are absurd attempts, on the partof the people, to limit a power in its own nature illimitable.36It was, Marshall continued “emphatically the province and duty of the judicial department to saywhat the law is.” Therefore, it was for the court where necessary to hold that an Act ofCongress was void should it conflict with the terms of the constitution.Two other cases Harris v. Minister of Interior, [1952] 2 S.A. 428 and BriberyCommissioner v. Ranasinghe [1965] A.C. 172, provided further judicial support for the logicof the ‘new view’. However, like Trethowan, both cases concerned matters that the U.K.Parliament was not subject to.36 [1803] Cranch. 103 at 177.14In many other countries where there is a written constitution, the same approach appliesand either the ordinary courts or a special constitutional court have the function of upholding theconstitution, if necessary even against acts of the legislature. These countries include Canada,Australia and Germany.We have seen that where there is a written constitution, its terms may prevail over actsof the legislature. In the absence of a written constitution, it is theoretically possible that thejudges could exercise a power to review legislation, based for example on principles of naturaljustice and fundamental human rights. But the practice of British judges for several centurieshas been to deny that they have any such role. Their duties extend to the application andinterpretation of legislation, but stop short of a power to review Acts of Parliament.Institutional Foundations: The Common-Law Basis of the DoctrineIn the absence of a written constitution for the United Kingdom, where is the source ofthe legal rule that there are no limits on the legislative capacity and that courts may not reviewthe validity of legislation? For reasons of logic, one should not expect to find this rule createdby an Act of Parliament. As was said by the jurist Salmond, “No statute can confer this powerupon Parliament, for this would be to assume and act on the very power to be conferred.”37In fact the United Kingdom Parliament has never expressly attempted to confer upon itselflegislative omnipotence. So, for the reason stated by Salmond, it is to the decisions of the courtsthat we must look to discover propositions about the legislative powers of Parliament.P.J. Fitzgerald, ed., Salmond on Jurisprudence, 12th ed., (London: Sweet and Maxwell,1966) at 111.15Whatever may have been the earlier position,38 since 1700 the weight of judicialauthority has given support to the doctrine of legislative omnipotence. Thus, in 1872 the courtsaid, “There is no judicial body in the country by which the validity of an Act of Parliament canbe questioned. An act of the Legislature is superior in authority to any court of law... and nocourt could pronounce a judgement as to the validity of an Act of Parliament.39 And in 1906,the High Court of Justiciary in Edinburgh said, “For us an Act of Parliament duly passed byLords and Commons and assented to by the King is supreme, and we are bound to give effectto its terms.”4° We may thus conclude that there is a rule of law that the courts have noauthority to review the validity of Acts of Parliament. One question remains, however, how isit that this rule of law came to be 7 Like other doctrines of the common law, the Britishconstitutional rules have, at all stages of their development, reflected the practical politicalrealities in the United Kingdom.4’ The history of the evolution of the rule of parliamentarysupremacy is, in fact, the history of the doctrine of the Rule of Law in England.The medieval conception of the Rule of Law was that the governmental institutions werecreated by the common law, and therefore, their powers were defined by it. To quote Bracton’sclassic dictum: “The King must not be under man but under God and under the law, because law38 Dr. Bonham’s case, [1610] 8 Co. Rep. 1 13b (“When and Act of Parliament is againstright or reason, or repugnant or impossible to be performed, the common law will control it andadjudge that Act to be void”).Ex parte Selwyn [1972] 36 J.P. 54.40Mortensen v. Peters, [1906], Fraser, Court of Session Cases (Scotland) 1898-1906 at 100.41 J.D.B. Mitchell, loc.cit. at 70.16makes the King.”42 The growth of royal power under the Tudors and Stuarts challenged thisdoctrine but the Courts generally reasserted it most significantly against Parliament in Dr.Bonham ‘s case.It is clear that even by 1610 the Rule of Law had generally come to mean rule of law asenacted by Parliament,43 at least where the Act was not contrary to scripture or some verybasic conception of the constitution, such as Magna Carta. In the turbulent politicalatmosphere of the early seventeenth century, legal doctrine was frequently used to bolster apolitical argument. The conception of ‘fundamental law’ embodying the common law or theancient liberties of Anglo-Saxon England, as embodied in Magna Carla, was employed by allsides of political controversies until the end of the eighteenth century.45 The idea thatParliament could not change certain principles of the common law was, however, soon seen tofavour the Royalists, for the Royal Prerogative was clearly a major doctrine of the common law.Accordingly, the parliamentarians gained the support of the common lawyers who realised thatif Royal claims were to be rejected by the law, the Rule of Law must come to mean rule of thelaw as enacted by Parliament, and not the rule of the ancient common law.46 This alliance andmutual respect between Parliament and the common lawyers has had a profound effect on the42 2 Holdsworth at 252.4 Holdsworth at 187.2 Holdsworth at 444.For an excellent analysis of the history of ‘fundamental law’ in England, see J.W. Gough,Fundamental Law in English Constitutional History, (Oxford: Clarendon, 1955).46 2 Holdsworth at 441-442; 4 Holdsworth at 187-189.17development of English law, particularly in judicial recognition of parliamentary supremacy47and parliamentary acceptance of judicial independence.48 Thus, by the eighteenth century,49and, for all practical purposes, by the time of the ‘Glorious Revolution’ of 1688, the sovereigntyof Parliament was clearly established.Three important themes must be acknowledged. First, the medieval Parliament wasconceived of as a court, the highest in the realm, and was usually called the “High Court ofParliament.”50 The rule that the ordinary courts lacked jurisdiction to review the validity ofstatutes was a natural consequence of this conception. It was only after 1688 that the role ofParliament in creating new law was understood but, even so, not until the nineteenth century wasParliament clearly seen as a body which not only could, but also should, reform the commonlaw. Nevertheless, the influence of the notion of Parliament as the highest court long persisted,adding greatly to the arguments against judicial review of legislation.Secondly, the sovereignty of Parliament was justified by the theory that because “thepeople” elected Parliament, its supremacy meant, in effect, the “sovereignty of the people.”51Of course, Parliament was not even remotely representative of “the people” until the Reform Actof 1832, the passage of which, accordingly, lent great support to the doctrine of parliamentary“ For a discussion of the reconciliation of the Rule of Law with the sovereignty ofParliament see Dicey, Law of the Constitution, 406-414.Act of Settlement 1700, s. 3.10 Holdsworth at 527.50 H. Calvert, British Constitutional Law, (London: Blackstone, 1985) c. 1.51 G. Marshall, Parliamentary Sovereignty and the Commonwealth, (London: OxfordUniversity Press, 1957) at 68.18sovereignty.52Finally, there was the establishment of the monopoly of legislative power in Parliament,a monopoly in the sense that legislation emerges from Parliament or under its authority. Theparticular significance of this is the establishment of that monopoly against the Crown, reflectedin the great seventeenth century struggles; but also in the attitude to treaties. Since the treaty-making power remained with the Crown, it followed that a treaty could not, of its own force,enter into United Kingdom law, unless its content were incorporated by statute: otherwise thedelicate constitutional balance would have been at risk. This further reinforced the conceptionthat Parliament’s will was supreme.To conclude this chapter, then, the rule of parliamentary supremacy has evolved fromthe common law. The debate about the sovereignty of Parliament has revolved around onecentral question. Does Parliament’s power to legislate on any subject include the power to limitthe area of competence of jurisdiction of future Parliaments? Diceyan orthodoxy suggests thateach Parliament will have exactly the same powers as its predecessor; it will be able to legislateon every subject bar one - it will not be able to restrict the legislative competence of futureParliaments. The ‘new view’ scholars, most notably Jennings and Heuston, maintain that whileParliament may be unable to restrict the substantive power of future Parliaments, it may be ableto impose procedural (manner and form) restrictions on them.The ‘new view’ of parliamentary sovereignty has clearly become the preferred viewamongst constitutional scholars. But, although Dicey’s formulation of the doctrine has comeunder challenge, it has to this day remained the preferred formulation of the courts of the United52 Mitchell, loc.cit. at 70.19Kingdom. While Manuel, Pickin, Ellen Street Estates and Vauxhall all reaffirm the legislativesupremacy of Parliament as far as the judiciary are concerned, none of these cases raised anyof the problems now at issue as a result of the European Communities Act 1972. Significantly,for Lord Justice Megarry in Manuel, “the simple rule of the duty of the court to apply every Actof Parliament” was subject to the caveat that he could leave aside the European Communitiesand all that flowed from it, judicial recognition of the difficulties raised, and the fact thata case with a European element is no longer answerable by application of a ‘simple rule’. Thequestion of whether any view of parliamentary sovereignty can be maintained since entry intothe European Community remains open.Admittedly, the above analysis has been more legal that political in its approach. A morepolitically oriented inquiry would place much less emphasis on sovereignty when describing thepolitical establishment and the way the constitution works. We all know that Parliament hardly‘legislates’ at all and it is the Government which produces legislation for scrutiny and debate.Nevertheless, only an Act of Parliament has legislative effect, and if the ‘will of Parliament’ isan unreal concept, that of Parliament as the ultimate authority is not.To such a constitutional framework, accession of the United Kingdom to the EuropeanCommunity posed a direct challenge. The assertion of the primacy of Community law overnational law contradicts Dicey’s formulation - the Community institutions are, as will be shown,clearly bodies which claim the right to override legislation of Parliament and to make laws whichParliament cannot, for all practical reasons, unmake. For the proponents of the ‘new view’ ofsovereignty the challenge was more subtle. The assertion of Community law supremacyappeared an attempt to impose limits on the content of legislation- could this be met by20amending the ‘manner and form’ of legislation? Such a procedural change might beaccommodated in the theory. Yet the issue is not just one of theory - but of how far theaccession to the EC and developments since then have resulted in a weakening of Parliament asthe ultimate constitutional authority.21Chapter 2: The Birth and Growth of the CommunityUnderstanding how the United Kingdom’s membership in the European Communityaffects the constitutional cornerstone of parliamentary sovereignty requires, to state the obvious,an understanding of Britain’s position within the context of the EC. Accordingly, the presentchapter examines the primary forces which lay behind the impetus for European integration andBritain’s eventual accession to the EC, and provides an overview of the institutional organs ofthe European Community which have been so vital to the Community’s continued existence.The subsequent chapter will complete the picture by examining the legal foundations of the newCommunity order.The European Community is a result of an impulse towards solidarity spawned from postwar developments and of the conscious effort to create a form of unity in Western Europe.When political unification proved premature, as will be discussed below, the architects of theCommunity seized upon the economic advantages of collaborative inter-state relations. Theybuilt these economic elements into three ‘Communities’ (coal and steel, atomic energy, and acommon economic market), so much so that today, within a somewhat vague though clearlyemerging notion of a political community, we have three legally definable treaty-based‘Communities’, with one in particular -- the European Economic Community (EEC) -- emerginginto a European Federation of sorts.Historical DevelopmentTwice in the Twentieth Century and for ages previously, war has plagued the European22continent. Although the yearning for peace after World War II was translated into a desire fora “United Europe”53, as evidenced by the call of the 1948 Hague Congress for WesternEuropean economic and political union, the first concrete steps toward European integrationwere prompted by the spectre of Soviet expansion. Despite the United States defencecommitment affirmed in the North Atlantic Treaty, Western Europe stood divided and vulnerablein the face of a Soviet Union whose wartime military potential had scarcely been diminished bydemobilization, and whose political and economic influence had been enhanced by successfulCommunist Party coups in Bulgaria, Rumania, Poland and Czechoslovakia.54 It was in thiscontext that Robert Schuman, the French Foreign Minister, made an historic proposal to aministerial meeting in London on May 9, 195O. His proposal was for no less than the fusionof the coal and steel industries of France and Germany, and any other countries wishing toparticipate, under a supranational high authority. Not only would such a pooling of productionmake future conflict between France and Germany impossible, it would provide a sound basefor economic expansion. The implications of the scheme were clearly far-reaching, constituting,as Schuman explained, “the first concrete foundation for a European Federation which is soindispensable for the preservation of peace” 56The Schuman Plan was enthusiastically endorsed by the Benelux countries, France,See generally, M. Palmer and J. Lambert, European Unity, (London: Allen and Unwin,1968), Introduction; H.M. Gladwyn, The European Idea, (London: Weidenfeld and Nicolson,1966), c.1.NATO - Facts and Figures, (Brussels: NATO Information Service 1971), c. 1.Department of State Bulletin, 22, U.S. Department of State, (Washington, D.C., 1950)at 936-937.56 Ibid.23Germany and Italy, but the United Kingdom declined to participate, refusing to accept the roleof a projected supranational authority. The Treaty Establishing the European Coal and SteelCommunity (Treaty of Paris) was signed in Paris on April 18, 1951, and came into force on July20, of the following year.57The Treaty of Paris defines the task of the Community as that of establishing a commonmarket in coal and steel products, and prohibits duties, subsidies and restrictive practices asbeing incompatible with that aim.58 In order to carry out its allotted task, the Communityenjoys a limited power of intervention in the economies of Member States. The Preamble ofthe Treaty emphasizes its political inspiration, recording the resolve of the signatory powers to:substitute for age-old rivalries the merging of their essential interests; to create,by establishing an economic community, the basis of a broader and deeperCommunity among peoples long divided by bloody conflicts; and to lay thefoundations for institutions which will give direction to a destiny henceforthshared.The reference to common institutions is particularly significant, for as Mr. Schuman had pointedout, the Coal and Steel Community was to constitute the first stage of European Federation. Inaccordance with this aim, the Treaty establishes four institutions: a High Authority, a SpecialCouncil of Ministers, a Common Assembly and Court of Justice.59 Thus, it is in the Treatyof Paris that the four fundamental institutions of the European Communities today originate.In June of 1955, a conference of the foreign ministers of the ECSC met at Messina andexpressed the belief that the time had come to make another advance towards the building ofButterworths European Information Service, Guide to the European Communities,(London: Butterworths, 1989) at 3-4. (European Coal and Steel Community hereinafter ECSC).Treaty of Paris, art. 44.Treaty of Paris, art. 7.24Europe, and that this must be achieved first of all in the economic field.6° The twin objectiveswere agreed of developing atomic energy for peaceful purposes, and establishing a Europeancommon market. A committee under the chairmanship of the Belgian Foreign Minister, Paul-Henri Spaak, was entrusted with the task of making proposals to this end. The United Kingdomdeclined to participate in the work of the committee.The Spaak Report was published on April 21, 1956.61 It noted that the individualnational markets in Europe were incapable of achieving the economies of scale achieved in theUnited States. It defined the object of a common market as the establishment of a large areawith a common economic policy, establishing a powerful unit of production, which would allowcontinuous economic expansion, and the development of harmonious relations between themember states. The report examined, inter alia,- the establishment of a customs union- the free movement of persons, services and capital- the establishment of a common agricultural policy- the establishment of a Community competition regime- the correction of market distortions arising out of divergent national legislationIn the committee’s view it was impossible to establish a Common Market without institutionalsupervision of a transnational nature.After the negotiations which followed the endorsement of the Spaak Report by theGovernments of the Six, two treaties were signed at Rome on March 25, 1957 providing for theestablishment of a European Economic Community (The Treaty of Rome), and a European60 Royal Institute of International Affairs, Documents on International Affairs, (1955),(London: Oxford University Press) at 163.61 The Spaak Report: A Summarized Translation of Part 1, [Published as Broadsheet No.405 by Political and Economic Planning (PEP), (London, 1956) at 223.25Atomic Energy Community (the EURATOM Treaty).62 Both treaties came into force onJanuary 1, 1958. Their content, and the institutional structure of the respective Communities,followed closely the recommendations of the Spaak Report.The Treaty of Rome and the EURATOM Treaty follow the institutional pattern of theTreaty of Paris. Each of these three treaties empowers a Council of Ministers, a Commission(called High Authority in the ECSC Treaty), a Parliament and a Court of Justice. This led toan unnecessary and confusing institutional structure which was remedied in part by merging theCourt and Parliament in 1957 and later the Council and Commission by the so-called “MergerTreaty” of 1967.63 Since then, there has been one Council, one Commission, one Parliamentand one Court, all staffed by the same people. Each of these institutions, however, derives itspower and authority from the terms and conditions of whatever treaty it is acting under. Inother words, the treaties were not merged, only their institutions. The three Communities62 Treaty Establishing the European Economic Community (Treaty of Rome 1957 asamended by the Single European Act 1986, hereinafter called the EEC Treaty). TreatyEstablishing the European Atomic Energy Community (EURATOM Treaty 1957 also signed inRome). EURATOM is a very specialized Community focused on joint research and peacefuldevelopment of atomic energy. It is, so to speak, the least significant of the three EuropeanCommunities. Fort further information about these treaties, see, A.G. Toth, ed., The OxfordEncyclopedia of European Community Law, Vol 1., (Oxford: Clarendon, 1990) at 203.; and,H. Smit and P. Herzog, eds., The Law of the European Economic Community: A Commentary,vols. 1-6, (New York: Matthew Bender, 1976). The Single European Act 1986 (SEA) is a treatysigned by the twelve member states of the European Communities in February 1986, amendingthe ECSC, EEC, and Euratom Treaties and laying down provisions on European co-operationin the sphere of foreign policy. The Act entered into force on 1 July 1987 (O.J. 1987 L169/1).The SEA was prompted by the desire to make concrete progress towards European Union.63 Treaty Establishing a Single Council and Single Commission of the EuropeanCommunities. See, K.R. Simmonds, ed., Sweet and Maxwell’s Encyclopedia of EuropeanCommunity Law, vol. 13, part B, (London, Sweet and Maxwell, 1973) at B8-034.; and A.G.Toth, loc.cit. at 310.26remain legally distinct. Thus, when the Commission acts on coal and steel matters, the legalityof its actions is measured by the Treaty of Paris. When the Council legislates on atomic energy,the EURATOM treaty controls, and so forth. Given the scope of the Treaty of Romeestablishing the EEC, the institutions of the Community most often operate under its terms.Largely in response to the creation of the EEC, Austria, Denmark, Norway, Sweden,Switzerland, Portugal and the United Kingdom signed the Stockholm Convention on January 4,1960, and the European Free Trade Association (EFTA) came into being in May of that year.The primary object of the “outer Seven” was to offset any detrimental effects to their traderesulting from the progressive elimination of tariffs inside the Community by a similar reductionwithin the EFTA. To a certain extent, EFTA was regarded as a stepping stone to possible futuremembership of the EEC. Indeed, barely 14 months after the Stockholm Convention entered intoforce, the Macmillan Government applied for EEC membership. This was to be the first of twoapplications thwarted by the opposition of President Charles de Gaulle. After lengthynegotiations had taken place within the Six, the French President made it clear in January 1963that he would not consent to British accession.Applications in 1967 by the United Kingdom, Denmark, Ireland and Norway met withsimilar rebuff. Nevertheless, these four countries left their applications “tabled” and at theHague Summit Conference at the Six in December 1969 it was agreed that:The entry of other countries of the continent to the Communities. . . wouldundoubtedly help the Communities to grow to dimensions more in conformitywith the present state of world economy and technology.... In so far as theapplicant states accept the Treaties and their political objective. . . the Heads ofState or Government have indicated their agreement to the opening of negotiationsbetween the Community on the one hand and the applicant States on the other.M64 Third General Report on the Activities of the European Communities (1969), AnnexDocuments on the Summit Conference, at 487-489.27Negotiations formally opened on June 30, 1970, and in July the following year the BritishGovernment set out in a White Paper the terms agreed for membership and the economic andpolitical case for going ahead •65 On January 1, 1973, the Treaty of Accession entered intoforce, and Denmark, Ireland and the United Kingdom became Members of the threeCommunities. In May 1979 Greece became a Member67 followed by Spain and Portugalin June 1985.68Britain’s Road to AccessionThe accession of the United Kingdom to the Communities is a story of indecision,hesitation, aborted applications and finally admission in an atmosphere devoid of the elationwhich such a significant historical event might have deserved.69 Instead of being one of thearchitects of the European Community, the United Kingdom, preoccupied with an Atlantic role65 Great Britain, Cabinet Office. The United Kingdom and the European Communities.Cmnd. 4715, Session 1970-71, (London: Her Majesty’s Stationary Office, 1970).66 Treaty of Accession 1973.67 Treaty of Accession 1979.68 Treaty of Accession 1985.69 Research of this period in British history abounds. Thoughtful surveys include: U.W.Kitzinger, Diplomacy and Persuasion: How Britain Joined the Common Market, (London,Thames and Hudson, 1973); A.H. Robertson, The Council of Europe, 2nd ed., (London:Stevens and Sons, 1961); J. Frankel, British Foreign Policy 1945-1973, (London: OxfordUniversity Press, 1975); D. Childs, Britain Since 1945: A Political History, 2nd ed., (London:Methuen, 1986); K.O. Morgan, The People’s Peace: British History 1945-1989, (London:Oxford University Press, 1990); G. Arnold, Britain Since 1945, (London: Blandford, 1989); G.Worswick and P. Ady, (eds.), The British Economy 1945-50, (London: Oxford UniversityPress, 1952); K. Middlemas, Politics in Industrial Society: The Experience of the British SystemSince 1991, (London: A. Deutsch, 1979); J. Strachey, The End of Empire, (London: Macmillan,1959); W. Wallace and H. Wallace, (eds.), The Dynamics of European Integration: The WiderWestern Europe, (London: Pinter, 1990).28and the leadership of the emerging Commonwealth, neglected its European role. Britain profitedfrom Marshall Aid materially, but failed to anticipate its significance for European solidarity.Likewise, it played from the start a major part in the NATO military alliance, but did not aspireeither to long-term leadership in the political arena or a collective participation in the economicreconstruction of Europe. Successive British governments adopted a sceptical if not anegative70 attitude towards the European unity movement and the proposed supranationalstructures. In the economic field, a less structured and less politicized form of co-operation waspreferred. By the early 1970’s political and economic realities ensured that Britain, thoughreluctantly, became a member of the EEC in January 1973.Unlike her neighbours on the continent, Britain emerged from World War Two withmuch glory and her Empire intact. In consequence the country managed to delude itself for ageneration that it was in a special category, different from other European states and able to playa unique role in the Atlantic Alliance; to be of but not in Europe; and to exercise worldwideinfluence through her Commonwealth.In the immediate post-war years on a variety of fronts, under the aegis of ForeignSecretary Ernest Bevin71, the United Kingdom pushed into an uncertain form of internationalleadership. In particular, Bevin sought to give Britain primacy in Western Europe in theaftermath of its occupation and economic collapse. However, precisely what kind of leadershipthis would be, or the very geographical extent of Western Europe, remained obscure.instance, British Foreign Secretary Ernest Bevin (Labour), when asked for his opinionon British participation in European union, replied, “I don’t like it. I don’t like it. If you openthat Pandora’s Box you will find it full of Trojan horses”, (Robertson, loc.cit., at 6, n. 23).71 British Foreign Secretary, 1945-51. See, A. Bullock, Ernest Bevin: Foreign Secretary,(New York: Norton, 1983).29The signing of the Treaty of Dunkirk in March 1947 combined with Bevin’s other movesat this time toward British and European commercial and currency collaboration, encouragedsome to believe that an historic shift in Britain’s self-perception was taking place. The UnitedKingdom, it was thought, might emerge as the head of some form of united Europe. TheAmericans were enthusiastic about this idea, as much on political as on economic grounds.They saw economic recovery in Europe as vital to the national security of the United States.Within the Labour Party, at least a hundred MPs were enthusiasts for the idea of a European‘third force’, independent of the Soviet Union and the United States.72 It soon became evident,however, that Bevin himself, and indeed all the Labour Cabinet, had little sympathy with sucha concept. Britain in a united Europe, it was declared, would go against “a thousand years ofhistory”73. The historian Keith Middlemas summarizes the prevailing attitude of the Labourgovernment at the time, saying:The idea of a united Europe, especially a federation, would conflict with Britain’sview of a multi-racial Commonwealth, and with its special relationship with theUSA as well. Any surrender of British sovereignty would be unacceptable,especially to the labour movement intent on building up its own version ofsocialism in our time.74The United Kingdom, it was clear, would not collaborate in the interests of a unitedEurope. But it would take the lead in promoting a more flexible concept of European union.It did so in the form of the Organization of European Economic Recovery (OEEC) in theEuropean Payments Union, and later in the European defence arrangements that resulted from72 See, J. Schneer, Labour’s Conscience: The Labour Left 1945-5 1, (Boston: Unwin, 1988)at 52.‘ Attributed to Hugh Gaitskell (Chancellor of the Exchequer, 1950-5 1, and leader of theBritish Labour Party, 1955-63). See, D. Childs, loc.cit. at 134.‘ K. Middlemas, loc.cit. at 112.30the Brussels pact of March l948. Until the new phase heralded by the French initiative ofthe Schuman Plan in 1950, British policy-makers could be well pleased with a form of Europeancollaboration that protected the British national interests and the country’s identity. As JonathanStrachey remarks, “they had wrested the initiative from the hands of the theoreticalfederalists”76. Bevin sought a solution in which the United Kingdom led an expanded WesternEuropean association, which had trade and other links with North America, but which did notsacrifice the United Kingdom’s wider interests as a world banker and head of theCommonwealth. Down to 1950, Bevin’s policy seemed to meet with success.By the early 1950s, however, the potential of the British in exercising a permanentcontrol over the future development of Western Europe was increasingly challenged by otherEuropean powers, the French especially, as they themselves began to recover from economicdevastation of the war. The British Foreign Office sought to undervalue growing continentalinclinations toward greater European unity. It was argued that the centuries of French-Germanhostility, the internal divisions of Belgium over language, and the post-fascist weakness of Italy,would ensure that all grand designs for closer unity would founder. A rude shock came in May1950, therefore, when French Foreign Secretary Robert Schuman suddenly promoted the ideaof a European coal and steel community. Bevin rebuffed it angrily, complaining that he hadbeen given no public warning.77Britain argued that the Commonwealth relationship, her association with the United StatesSee, A. Bullock, loc.cit. at 529.76 J• Strachey, loc.cit. at 84.Record of conversation between Bevin, Schuman and Dean Acheson (at the time U.S.Secretary of State). 11 May 1950, F.O. 371/85341.31and the planning priorities of the nationalized British coal and steel industries, all opposedparticipation in the Schuman plan. But the plan went ahead anyway, without Britishparticipation, and by 1952 it was clearly visualized as the basis of a broader, more ambitiousEuropean commercial and industrial grouping. By now it was clear that European developmentswere outstripping Britain’s capacity to control them. At the time of the downfall of the Atleegovernment in October 195178, it was widely believed that the immediate post-war phase ofBritish leadership of a ‘flexible’ western union in Europe, through the agency of the OEEC, thePayments Union and the Brussels treaty, was coming to a rapid end. The United Kingdom’srefusal in 1952 to join the Schuman Plan was a real beginning for Europe. Britain from thenon was not involved in the early building of a united Europe.The years of Conservative government throughout the 1950s saw a deliberate policy bothof isolationism towards European collaboration and of wilful disinformation towards the realevidence of the continental powers themselves coming together in greater unity. As a memberof Cabinet, Harold Macmillan79,in early 1952, tried to encourage the creation of links withthe Schuman Plan and the European Defence Force.8° He was sternly rebuked by LordSalisbury who asserted:We are not a continental nation but an island power with a Colonial Empire and uniquerelations with the independent members of the Commonwealth. Though we mightmaintain a close association with the continental nations of Europe, we could nevermerge our interests wholly with theirs. We must be with, but not in, any combinationof European powers.8178 Clement Atlee, Labour Prime Minister of Great Britain, 1945-51.Conservative Prime Minister of Great Britain, 1957-63.80 See, J. Frankel, loc.cit. at 110.81 G. Arnold, loc.cit. at 57.32This view was still the prevailing one in Parliament. The consequence was that Britain driftedalong in the 1950s quite detached from the Coal and Steel Community and other clearmanifestations of a growing European presence.It was under the leadership of Harold Macmillan that the United Kingdom first turneddown the chance to become part of the European Economic Community from its inception.Britain then tried to combat its impact by proposing alternatives, finally realized that she oughtnot to remain excluded and applied to join. These three phases could well be interpreted as thelearning process by which Macmillan and the British people came to terms with the European-centred nature of the country’s future. It was a reluctant process. Macmillan, like Churchill82before him, put the American alliance first and worked ceaselessly to maintain Britain’s ‘bigpower’ status.The Messina Conference on common market possibilities, which began in 1955, was nottaken sufficiently seriously by the British Foreign Office and the British were absent from thecrucial negotiations which produced the Treaty of Rome. Britain did not believe that much inthe way of substance would emerge from the discussions. At the time of the Conference realunity looked unlikely and Britain’s concern with the American alliance was based upon the fearthat the USA might retreat into isolation again; her survival had twice depended upon the UnitedStates entering a world war on her side.The miscalculations of this time were great, if understandable. What Britain found in1958 was that she was excluded by her own choice from a Europe of the Six, which waspotentially immensely powerful in economic and political terms. Over the preceding fourcenturies Britain had pursued the balance of power in Europe and had fought Spain, France and82 Conservative Prime Minister of Great Britain, 1940-45; and 1951-55.33Germany in turn to prevent any of the nation-states from becoming too powerful and dominatingthe Continent. Now, by default, she had allowed a powerful European union to form overwhich she had no control.Between 1957, when the Treaty of Rome was signed, and 1961, when the UnitedKingdom applied to join the Common Market, the Conservative government with Labour supporttried to establish alternatives to the new European economic alliance. Since the EEC nowexisted, all prophecies to the contrary notwithstanding, Britain had to take some view of it.Thus, much diplomatic effort was now expended in trying to form a customs union which wouldlink the Six of the EEC with perhaps six other nations, Norway, Sweden, Denmark, Portugal,Austria and Switzerland, in a European trading bloc. This, however, came to little, with theBritish insisting on the need for special protection for British agricultural produce as well as forCommonwealth foodstuffs.83Britain now fell back on her second idea of a European Free Trade Association (EFTA,or the ‘Outer Seven’ as it became known), consisting of Britain, Norway, Sweden, Denmark,Austria, Switzerland and Portugal. This was designed to counterbalance the Six, but the UnitedKingdom was its only industrial-economic power, so it stood little chance of becoming aneffective rival to the Six. In a sense, it was too obvious a device to undermine the cohesivenessof the Common Market. By 1960, its failure compared with the growing success of theEuropean Economic Community made plain that Britain would have to think again. Througha process of indifference, opposition and floating alternatives, Britain came to accept that aEuropean force had been born from which she had excluded herself when she might have been83 See, Interim Report on ‘United Kingdom Initiative in Europe’, 23 July 1956, F.O.374/122032.34its leader.The British political orientation took a European turn in 1961, when the governmentapplied for membership in the common market; but from a position of weakness rather thanstrength. The United Kingdom appeared to be approaching Europe not from conviction butbecause everything else had failed. In August 1961, Macmillan announced that Britain haddecided to apply for membership of the Six. There were some protests in Tory ranks, mainlyfrom pro-Commonwealth MPs, but a majority of Conservatives were in favour.84 The Labouropposition went through some disarray in 1962, but finally decided emphatically against Britain’sjoining the Common Market. Public opinion in general took much the same line. It remainedinsular and unconvinced of the virtues of getting closer to European foreigners, but forMacmillan and his colleagues, membership of the Common Market would fill a huge vacuumin British foreign policy by providing Britain with a different kind of regional association, onehighly acceptable to the Americans. It would also give the country a guaranteed and growingmarket on the continent as well.85After almost two years of negotiations, when the British Government was ready to sign,the application was in effect vetoed at a press conference on 14 January, 1963, by the Presidentof France, General de Gaulle. In his opinion, the British were not sufficiently European andneither their transatlantic connections nor their commerce or industry would fit into the EuropeanCommon Market. Moreover, the British entry would change the nature of the Community andopen up many problems, including that of an American intrusion.8684 D. Childs, loc.cit. at 133-135.85 Ld., c. 6; and J. Frankel, loc.cit., c. 10.86 R.E.M. Irving, ‘The United Kingdom Referendum’ (1975-76). 1 E.L. Rev. 1.35A majority of the Labour Party were pleased that Britain had failed to gain entry into theCommunity -- not just for party political reasons, but from ideological opposition to what theybelieved the Common Market to represent -- an elite capitalist club.87 Renewed rhetoric wasexpended upon the Commonwealth. Then, in 1964, Labour came to power under HaroldWilson88. From his accession until his defeat in 1970, Wilson was faced constantly with theproblems in Rhodesia which plunged the Commonwealth into crisis. The tensions it producedat the 1966 Commonwealth Conference soured Wilson’s faith in it and in the autumn heannounced that the Labour Party was to approach the EEC.In January 1967, Wilson and his Foreign Secretary, George Brown, toured the capitalsof the Six exploring the chances of entry. In May Britain applied to join and in November,predictably, de Gaulle again vetoed the application. Nothing had changed since Macmillan’sattempt; de Gaulle’s suspicions were the same as ever, and the British were divided on the issue,two-thirds of the Labour Party being anti- rather than pro-Community.89 Above all, it stillappeared that entry was seen in London more as a solution to current problems than as astatement of faith in the European idea.The third British attempt led by Conservative leader Edward Heath9° was successful.In France, de Gaulle had been replaced as President by Georges Pompidou, who was far moreamenable to an expanded Community. Though protracted, negotiations were completed and the87 G. Arnold, loc.cit. at 60.88 Labour Prime Minister of Great Britain, 1964-70; and 1974-76.89 The Times, 29 Nov. 1967.° Conservative Prime Minister of Great Britain, 1970-74.36United Kingdom joined the Community in January l973.’ Yet it was not a popular decision.A vociferous Tory minority, led by Enoch Powell, was against entry as was the majority of theLabour Party.92 Despite the government’s enthusiasm, the opinion polls revealed aconsiderable opposition in the country and opponents contended that there was no materialadvantage in membership, while the surrender of sovereignty was an irreparable blunder. Thus,as Kenneth Morgan asserts, the prevailing mood of the British nation at accession wasone of waning acceptance, since no obvious alternative could be found. Iteven appeared a kind of surrender, a recognition that the loss of Empire and thebreakdown of an equal partnership with the Americas had left Britain as anenfeebled and divided offshore island with nowhere else to turn. It was not aninvigorating mood in which to celebrate the ending of ‘a thousand years ofhistory’Consequently, 1 January, 1973, came and went with little sense of historical change at all.The Institutions of the European CommunityThe uniqueness of the European Community stems from the deep involvement of itsinstitutions in matters traditionally within the exclusive control of each individual state and itscapacity to make rules directly and automatically binding not only on the member statesthemselves but also on individuals and corporate bodies within those states.94 Thus the uniquecharacter of the EC lies in the degree of its penetration into the internal legal relations of the91 On January 20, 1972, the last attempt to prevent the signing of the EEC Treaty was foiledby a majority of twenty-one for the government. See, (1972) 829 House of Commons OfficialReport (5th series) col. 800.92 R. Ritchie, ed., Enoch Powell: A Nation or No Nation, (London: Batsford, 1978) at 43.K. Morgan, loc.cit. at 342.See, infra, chapter 3.37member states, whereas classic international organizations tend to be involved merely with theexternal legal relations of their members. The institutions of the EC fall into two maincategories.95 In the first place, there are institutions vested with a variety of political,legislative, executive and administrative functions and powers. These are the Commission, theCouncil and the European Parliament. In the second place, there is the Court of Justice of theEuropean Communities (Court of Justice or ECJ), the judicial organ of the EuropeanCommunity.The Commission is the executive authority of the EC and represents the interests of theCommunity. Its three primary functions are: to propose Community legislation, to ensure thatthe provisions of the EEC Treaty are enforced,96 and to implement Community policies. TheCommission is composed of nationals of the individual member states who exercise their dutiesin complete independence: “they shall neither seek nor take instructions from any Governmentor from any other body” Although its seventeen members are named by unanimous consentof the member states’ governments for a renewable term of four years, the Commission is notpolitically responsible to the Council. Rather, the Commission is politically responsible to theEuropean Parliament (Parliament) which has the power to remove it by adopting a motion ofFor a comprehensive discussion of the structure and functions of these institutions, seeT.C. Hartley, The Foundations of European Law, 2nd ed., (Oxford: Clarendon Press, 1988),c. 1.; D. Lasok and W. Bridge, Law and Institutions of the European Communities, 4th ed.,(London: Butterworths, 1987), c. 5-9.; and A.G. Toth, loc.cit., supra, note 62.96 Should a member state be in breach of a Community obligation then it is the responsibilityof the Commission to challenge the legality of such a breach (if it so chooses) and to pursue thematter before the Court of Justice.EEC Treaty, art. 157 (amended by Merger Treaty, art. 10(2)). The Commission currentlyis comprised of 17 members, with at least one representative from each member state. Nomember state may have more than two of its nationals or the Commission at any time.38censure pursuant to article 144 of the EEC Treaty.98The Council is the EEC’s true legislative organ99 as the Treaty ascribes to it the powerto make decisions)°° Composed of one representative from each member state,10’ theCouncil begins the legislative process with a qualitatively different point of view than does theCommission. The difference is that the individual member states start the process with anunderstandably national, rather than a European focus on policy objectives.’02The Council of Ministers can be confused with the European Council. The latter, createdby the Heads of State and Government at the 1974 Paris Summit, is the result of a decision bythe leaders of the EEC countries to institutionalize and to regularize their summit meetings. TheEuropean Council, which meets at least two times each year, was intended to provide a highlevel political impetus to European integration.’03 Since the passing of the Single European(SEA 1986, art.2) the European Council has become de jure the supreme organ of theCommunities representing both the sovereignty of the member states and the corporate person98 Under article 144 of the EEC Treaty, the European Parliament may remove the entireCommission from office if a motion of censure is carried by a two-thirds majority of the votescast representing a majority of the Members of Parliament. This has never occurred.In the domain of the Community budget and in the area of accession and associationagreements, Parliament enjoys real decision making power and may properly be considered partof the Community’s legislative body. T.C. Hartley, loc.cit. at 41-45.‘°° Treaty, art. 145. In certain circumstances, the EEC Treaty centres normative powerdirectly on the Commission. See for example, arts 10(2), 13(2), 33(7), 90(3) and 91(2).101 EEC Treaty, art. 146.102 H. Wallace, ‘Negotiation, Conflict and Compromise: The Elusive Pursuit of CommonPolicies’, in H. Wallace et al., eds., Policy Making in the European Community, 2nd ed.,(Chichester: Wiley, 1983) at 46.103 Wallace, loc.cit. at 69.39of each Community. It consists of the Heads of State or of Government of the member statesand the President of the Commission. However, it is concerned only with matters of principleand general direction of the Communities, while the Council of Ministers retains its position asthe supreme working organ.The European Parliament represents the European people in the Community.’°” Thereare 518 Members of the European Parliament (MEP5) who, although directly elected by thecitizens of their respective member states since 1979,105 align themselves in Parliamentaccording to party affiliation and not on the basis of nationality. Except in the domain of theCommunity budget, Parliament has traditionally exercised only advisory and consultative powersin the decision making process.’°6 The most serious defect in the constitution of the‘° Treaty, art. 137.105 Universal suffrage endows the Parliament with a direct mandate from the Europeanpopulation and fortifies its claim for a greater role in the EEC legislative process. See, V.Bogdanor and G. Woodcock, ‘The European Community and Sovereignty’, ParliamentaryAffairs, 44(4), 1991, at 481. Direct elections to Parliament are held every five years. The mostrecent elections were held in June 1989 and followed direct elections in 1979 and 1984. Thenumber of MEP’s elected in each member state is as follows: Germany, France, Italy and theU.K. (81); Spain (60); Netherlands (25); Belgium, Portugal and Greece (24), Denmark (16);Ireland (15); and Luxembourg (6). Within the United Kingdom, the 81 seats are distributed asfollows: England (66); Scotland (8); Wales (4); Northern Ireland (3). While MEP’s may bemembers of their own national Parliaments their office is incompatibile with membership of anational Government. The EEC Treaty (Article 138) and the EC Council ‘Act of 1976’ (Article7(1)) envisaged that direct elections would take place in accordance with a uniform electoralprocedure in all the member states. The 1976 Act also provided that pending the entry intoforce of such a procedure, the electoral procedure should be governed in each member state byits own national provisions (Article 7(2)). Since the member states were unable to agree on auniform procedure, all three direct elections were held in accordance with the various votingsystems in force in the member states. In the United Kingdom the simple majority (‘first pastthe-post’) system was used in England, Scotland and Wales, and the single transferable votesystem in Northern Ireland. See, A.G. Toth, loc.cit. at 225.106 EEC Treaty, art. 137.40Community, from a democratic point of view, is that the Parliament has very few realpowers.’°7 Although the European Parliament as now composed has not greatly increased itspowers, it has without a doubt increased its influence, pariticularly in the decision makingprocess. Its debates provide a focus for Community affairs, and members, whether inside oroutside Parliament, can bring valuable publicity to bear on key issues.The legislative process is best understood as an ongoing dialogue between the Counciland the Commission grounded in the three elements: (1) the Commission’s right to proposelegislation (right of initiative), (2) the Council’s right to modify the Commission’s proposal, and(3) the Commission’s power to execute (implement) legislation adopted by the Council.’08 TheCommission’s right to initiative is central to the legislative process, as the Council can onlyexercise its power to adopt regulations, directives, or decisions by acting on a Commissionproposal.’°9 Thus, originally, the Commission was conceived of as “the chief policyformulating body, leaving the Council of Ministers as legislator, to accept or reject the proposalsof the Commission.11° Clearly, the Commission’s right of initiative is balanced by theCouncil’s right of amendment. In the end, however, the Council’s power to amend theCommission proposals and its general power of decision endow the council with the final wordin the legislative process.07 See, infra, p. 101.108 Article 149 of the EEC Treaty provides the central mechanism for Commission-Councilcollaboration in the legislative process.‘° The Council can, however, act on its own initiative in a limited number of cases. See,for example, EEC Treaty, arts. 84(2), 126 and 127. Regulations, directives and decisions arethe three categories of binding legislative acts emitted by the Council. They are defined inArticle 189 of the EEC Treaty. Much more will be said about these legislative forms, see infra,chapter 3.110 Wallace, loc.cit. at 57.41The judicial power of the Community is in the hands of the Court ofJustice,111 whosemain function is to ensure that in the interpretation and application of the EEC Treaty the lawis observed.”2 The Court has jurisdiction to decide disputes between member statesconcerning the application of the terms of the Treaties or relating to the general object orpurpose of the Communities, and to hear proceedings brought by Community institutions againstmember states, including power to determine the validity of acts of the Council and Commission.In addition to its contentious jurisdiction, the Court is empowered by Article 177 of the EECTreaty to give preliminary rulings, in particular cases arising in the courts of the member states,on the interpretation of the Treaty and of acts and statutes of Community organs. This advisoryjurisdiction is discussed below. Composed of thirteen Judges and assisted by six Advocates-General”3 chosen from persons of proven independence and qualified to hold the highestjudicial offices in their countries, the Court is really not an international court. It is in fact aninternal court of the Community. Its jurisdiction, as defined by the EEC Treaty is not asubstitute for the jurisdictions of the national courts of the Member States since it is confinedThe Court of Justice is no longer the sole judicial body of the EC. The Single Europeanm laid down the legal foundations for the establishment of a ‘Court of First Instance’ (SEA,art. 11) The new court has been operational since early 1989. The Court has twelve membersand sits primarily in chambers of three or five judges. The Court deals primarily with technicalmatters relating to the ECSC Treaty and actions in respect to certain competition provisions ofthe EEC Treaty. The activities of this new Court are of no significance to the issues exploredin this thesis. See, T. Millett, The Court of First Instance of the European Communities,(London: Butterworths, 1990).112 EEC Treaty, art. 164.113 The office of advocate-general has no equivalent in English Law, but it is similar to theCommissaire du Gouvernement at the French Conseil d’Etat. An advocate-general is requiredto consider the issues in a case impartially and individually and to reach his own personalconclusion as to what in law should be done. His/her fopinionu is then submitted to the Courtprior to judgment.42to the administration of Community law. It is, however, a fully-fledged judicial body with thepowers of arbitration, adjudication, control and advice. The power of interpretation of theTreaty and of the acts of the Community institutions enables the Court to exercise a quasi-legislative function and thus build up a body of case law which, like the French Conseil d’Etat,for example, contribute to the development of the law.In brief, there are three main kinds of actions (proceedings) that may be brought in theCourt of Justice. In an infringement action114, legal proceedings may be brought against amember state which fails to fulfil an obligation under the EEC Treaty or the law derived fromit. The initiative may be taken either by the Commission under Article 169 or by anothermember state under Article 170. It is important to note that individuals or firms whose interestshave been harmed by a member state’s failure to fulfil Community obligations are given nodirect remedy in the Court of Justice. The granting of remedies was intentionally left in thedomain of national courts of member states. In an action for annulment”5the Court of Justicehas jurisdiction to review the legality of acts of the Community institutions on the grounds setout in Article 173 and if the act is found wonting, to declare it void under Article 174.Finally, a reference for a preliminary ruling”6 may be brought in the Court of Justice.The preliminary procedure, as will be seen, has been fundamentally instrumental in facilitatingthe integration of Community law into the national legal system of the United Kingdom as wellas into the legal systems of the other member states. The reference procedure was designed tomeet the danger that divergent lines of authority on points of Community law would develop in114 EEC Treaty, arts. 167-171.115 EEC Treaty, arts. 173, 174, 176.Treaty, art. 177.43the various member states, reflecting disparities in their legal traditions and their economic andsocial circumstances. The procedure enables a national court, faced with the necessity ofdeciding a question of the interpretation or validity of a Community provision, to obtainauthoritative guidance from the Court of Justice. The national proceedings are suspended andthe Community point is encapsulated in one or more questions on which the ECJ is invited torule. After the Court has done so, it will be for the national court to apply the ruling in theconcrete circumstances of the case before it. The ruling is ‘preliminary’ in the sense that it doesnot form part of the decision that disposes of the case, however, a ruling by the European Courtunder Article 177 is binding on the national court deciding the case to which it relates.Thus, the proceedings in the Court of Justice represent a stage in proceedings whichbegin and end in another court. The Court is uniquely positioned to strengthen the bonds of theemerging Community order. It is the watchdog of legality within the Community. Armed withthe power of interpretation, the Court is the custodian of the EC Treaties and of all the lawsemanating therefrom.The powers of the Community organs which I have outlined above, would be quitemeaningless if it were not for the corresponding surrender of sovereignty by the member states.The surrender of sovereignty is only partial and is defined by the Treaty obligations, but it issufficient to create a distinctive bond between the member states and the Community.It is clear that the EEC is not a state”7 for it has no territory of its own, no population117 While in international law the EC has been endowed with the status and attributes of a“corporate capacity” and “legal person”, according to art. 1 of the Montevideo Convention of1933 on the Rights and Duties of States, “the state as an entity of international law shouldpossess the following qualifications: (a) a permanent population, (b) a defined territory, (c) agovernment and (d) a capacity to enter into relations with other states”. [I. Brownlie, Principlesof Public International Law, 4th ed., (Oxford: Clarendon Press, 1990) at 72-79.] The EuropeanCommunity fails the test on all of the above points except (d).44which is not a citizenry of the member states, while its ‘government’ has no powers except thosedefined by Treaty. However, it would be quite inadequate to define the EEC as the associationof states which subscribe to the Treaty of Rome, since the Treaty lays down a foundation forsomething more than a loose partnership of states involved in a joint economic enterprise. AsLord Cockfield suggests, “the Treaty is not a mere contractual compact, it is an institutionalstage of European unity”.’18 The relationship between the member states and the Communityseems to resemble a federation and the EEC Treaty is the Constitution, as it were, of theCommunity.119 The acceptance of the Treaty, the law enacted by the Community organs, andthe obligation to enact municipal legislation in accordance with the Treaty and the directives ofthe Community organs, emphasize the federal concept of the Community.In the terms of the EEC Treaty the member states seek to build Community institutionsand to create a body of law to regulate the economic activities of the members. Althoughsurrender of a certain portion of sovereignty is necessary in order to achieve these objectives,the pooling of sovereignty is not explicit enough to create a federal state or a federal governmentof the Community. Therefore, at this stage of its development, it can be argued that theCommunity is an association of sovereign states which displays the characteristics of anembryonic federation.118 Lord Cockfield ‘The Constitution in Transition: The Balance of Power: Brussels andWestminster’, in N. Lewis, ed., Happy and Glorious: The Constitution in Transition, (MiltonKeynes: Open University Press, 1990) at 7.119 The constitution of the EEC has clearly been devised upon a federal pattern. See, forexample, W.H. Piker, Federalism, (Boston: Little Brown and Company, 1964); G. Sawer,Modern Federalism, (London: C.A. Watts Ltd., 1969).; P. Hay, Federalism and SupranationalOrganizations, (Urbana: University of Illinois Press, 1966).45Chapter 3: The Community Legal OrderIn Chapter Two we saw that the unique supranational institutions of the EC bring theCommunity (which is, in the terms of the United Nations Charter, merely a regionalorganization) within the ambit of a federal concept. Moreover, it was shown that the foundingtreaties themselves are not merely treaty-contracts but essentially treaty-laws providing a‘constitution’ of sorts for the European Community. In this chapter, an overview of the newCommunity legal order that has emerged as result of the treaties is provided. Specifically, thesources of Community law and the twin pillars of the Community legal order -- the doctrine of‘primacy’ and the twin doctrines of ‘direct applicability’ and ‘direct effect’ -- will be examined.By 1973, the idea of primacy and the other cornerstone of Community law -- directapplicability/direct effect -- were clearly established so that the United Kingdom generallyunderstood the constitutional implications arising from the doctrines and had the opportunityfrom the beginning of accommodating them. Although it is unique in form, the debt owed bythe Community legal system to public international law is considerable and usuallyunderstated.’2°Sources of Community LawThe fundamental source of Community law, the source to which it owes its veryexistence, is of course the Treaties, of which the four main ones are:The Treaty of Paris of April 18, 1951, establishing the European Coal and Steel120 See, D. Wyatt, ‘New Legal Order or Old?’, (1982) 7 E.L. Rev. 147.46Community;The two Treaties of Rome of March 25, 1957, the first establishing the EuropeanEcono:nic Community and the second establishing the European Atomic EnergyCommunity; andThe Treaty of Brussels of January 22, 1972 governing the accession of the newMember States to the European Economic and Atomic Energy Communities.(Their accession to the Coal and Steel Community was effected by ‘Instrumentsof Accession.’)These treaties are the source of the constitutional law of the Communities. They set out theobjectives and purposes of the Communitites, define the powers of the institutions and regulatetheir relations with the member states. For the sake of simplicity when speaking of the Treaties,I will refer only to the European Economic Community. In practice the vast majority of casesin which Community law is relevant are concerned with that rather than with the law relatingto the other two Communities.The second major source of Community law is what is compendiously called ‘Communitysecondary legislation’ that is Regulations, Directives and Decisions made by the Council ofMinisters and by the EC Commission. This source of Community law will be discussed laterin the chapter)2’ Member states are bound in international law to carry out the obligationsimposed by the Treaty and secondary legislation. Breach of these obligations may give rise toan action before the Court of Justice at the suit of either the Commission or another MemberState. 122121 There are two more sources of Community law. One of these sources consists of the socalled ‘general principles of Community law’ - the ‘common law’ of the Community- whichhave been adopted by the European Court. They are an important source of Community lawand will in all probability play an increasing role as the Community develops. Internationalagreements with non-member states constitute the other source of Community law. They maybe concluded either by the member states or by the Community.122 Arts. 169, 170, supra, ‘infringement action’, p. 42.47There are three main characteristics of Community law that one must bear in mind:(1) that it is an independent legal order that is common to all member states;(2) that, if only for that reason, it must prevail over any national law that isincompatible with it; and(3) that it can and often does confer rights and impose obligations directly onindividuals (citizens) in the member states.I will deal with these three characteristics seriatim.Community Law as an Independent Legal OrderIt is generally recognized that Community law is a separate legal system, distinct from,though closely linked to, both international law and the legal systems of the Member states.This was affirmed by the European Court in the well known Van Gend en Loos’23 case, inwhich it was emphasized that the Community Treaties are more than mere internationalagreements. There it was stated:the Community constitutes a new legal order of international law, for thebenefit of which the states have limited their sovereign rights, albeit withinlimited fields, and the subjects of which comprise not only member states but alsotheir nationals.The phrase “a new legal order” conveys, in a striking way, the concept that the Community andits Institutions are the creatures of, and governed by, this new body of law, and that theirrelations with the member states and with the citizens of those states are ordered by it too, asare the relations between the member states and their citizens in those fields where Communitylaw is relevant.123 Van Gend en Loos v. Nederlandse Administratie der Belastingen, Case 26/32, [1963]E.C.R. 1 at 12; [1963] C.M.L.R. 105.48Though engendered by international law, Community law does not share all itscharacteristics; and the techniques and doctrines of Community law have more in common withbranches of national law, such as constitutional and administrative law, than with those ofinternational law. The relationship between Community law and national law clearly lends itselfto comparison with the relationship between state and federal law in a federal system.Community law is, however, separate from national law, even though it is applied by nationalcourts. Thus, national legislatures have no power to amend or repeal it; in the event of conflict,it will override national law, and its interpretation comes, in the last resort, within the exclusivejurisdiction of the European Court.To say that Community law is common to all member-states is no doubt to state a factthat is obvious. But it is a fact that has important practical consequences because it means thatCommunity law must be interpreted and applied in the same way throughout the Community.It is for this reason that Article 177 of the EEC Treaty exists (the preliminary reference): itenables the last word on any question of Community law to rest with the European Court.The Primacy of Community LawCommunity law introduces a new element into the context of the two classic theories ofthe relationship of national and international law. According to ‘monism’, both types of lawbelong in the same hierarchy of legal norms and international law is the higher, whereas‘dualism’ considers the two systems to operate in separate spheres, with each state’s ownnational law superior inside that state. The approach of the Court of Justice has been monist,49while in Britain constitutional law is still unhesitatingly dualist.124International law by its nature binds the State in its executive, legislative and judicialactivities, and no international tribunal would permit a respondent State to plead provisions ofits own law or constitution as a defence to an alleged infringement of an internationalobligation.’25 The same is true of European Community law, “over which no appeal toprovisions of internal law of any kind whatever can prevail” 126 The fundamental principleof Community law with regard to the relationship between itself and the national laws of themember states is refreshingly simple. It is that in the event of a conflict between a rule ofnational law and a rule of Community law, the latter must prevail. The application of theprinciple of primacy may give rise to complexities in some situations, but while some nationalcourts have hedged it around with limitations and qualifications and constitutional lawyers in themember states have struggled to reconcile it with their own constitutional provisions, the Courtof Justice has never wavered from upholding it without reservation. This practice was born ofthe necessity to uphold the unity and uniformity of Community law throughout the Community,and without it the pursuit of the aims and objects of the Treaty would be jeopardized.The principle of primacy was first laid down by the Court of Justice in the celebrated124 By virture of the royal prerogative in foreign affairs, the Crown has the power to enterinto treaties which bind the United Kingdom in international law. But this prerogative powerdoes not include power to alter the rights of individuals within the United Kingdom. If such analteration is required by a treaty, that can be done only by an Act of Parliament. See, infra,chapter 4, note 144.125 Vienna Convention on the Law of Treaties, 1969, art. 27.126 Case 48/71, Commission v. jgy, [1972] E.C.R. 527 at 535.50case Costa v. ENEL.’27 The Court stated:By creating a Community of unlimited duration, having its own institutions, itsown personality, its own legal capacity and capacity of representation on theinternational plane and, more particularly, real powers stemming from a limitationof sovereignty or a transfer of powers from the States to the Community, themember-states have limited their sovereign rights, albeit within limited fields, andhave thus created a body of law which binds both their nationals andthemselves.’28Then, after examining the provisions of the Treaty in some detail, the Court concluded:It follows from all these observations that the law stemming from the Treaty, andindependent source of law, could not, because of its special and original nature,be overridden by domestic legal provisions, however framed, without beingdeprived of its character as Community law and without the legal basis of theCommunity itself being called into question.’29The Court held in Internationale Handelsgesellschaft’3°that Community law prevails whateverthe conflicting national law, even where the latter is a basic constitutional provision guaranteeingfundamental human rights, and in Amministrazione delle Finanze v. Simmenthal,’3’that itprevails whatever the national procedural difficulties. In Simmenthal the conflict had arisen ina lower court unable, according to Italian law, to do anything but apply national law; only theconstitutional court could set aside national law in favour of the Community provision. TheCourt of Justice held that the primacy entailed Community law being applied in any court inwhich a conflict arose. There should be no question of waiting for the matter to reach a127[1964] E.C.R. 585.128 Ibid. at 593.129 Ibid. at 594.130 Internationale Handelsgesellschaft v. Einfuhr-und Vorratsstelle für Getreide, Case 11/70[1970] E.C.R. 1125; [1972] C.M.L.R. 255.131 Case 70/77, [1978] E.C.R. 1453; [1978] 3 C.M.L.R. 670.51superior court.In Van Gend en Loos and in Costa, the Court spoke of member states having “limitedtheir sovereign rights” and having transferred powers to the Community. This could givemember states a basis on which to begin to recognize the theory of primacy. The difficultycomes when the member state’s constitutional law cannot recognize irreversible limitations ofsovereignty, as with the U.K. ‘s doctrine of parliamentary supremacy, or when the constitutiondoes not allow transfers of sovereign rights which would touch upon certain basic entrenchedprovisions as was argued in Internationale Handelsgesellschaft. The principles of Costa andTnternationale Handelsgesellschaft were repeated yet more forcefully in Simmenthal:• . . any recognition that national legislative measures which encroach upon the fieldwithin which the Community exercises its legislative power or which areotherwise incompatible with the provisions of Community law had any legal effectwould amount to a corresponding denial of the effectiveness of obligationsundertaken unconditionally and irrevocably by Member States pursuant to theTreaty and would thus imperil the very foundations of the Community.’32Thus, the transfer of power, the limitation of sovereignty and the principle of primacystem from the signing of the Treaty by the member states. National constitutional adjustmentsare irrelevant, and, for the purposes of Community law, enactments such as the U.K. ‘sEuropean Communities Act 1972 are cosmetic only. Until Simmenthal the Court of Justice hadnot spelled out the effect of primacy upon conflicting national law, but there it said that the entryinto force of Community provisions rendered conflicting provisions of current national law“automatically inapplicable” and precluded “the adoption of new incompatible national measures”thus avoiding the description of the offending national law as ‘void’ .‘‘132 [1978] E.C.R. 629 at 643.‘‘ See, infra, chapter 4 at 73.52Direct Applicability and Direct EffectThe doctrine of primacy is inseparable from the other twin cornerstone of the Communitylegal order, the doctrines of direct applicability and direct effect; for it is when the Communitylaw can be pleaded in a national court that the potential conflict with national law is greatest.The legal impact of Community law in the member states springs from its capacity, even itstendency to give rise to rights in individuals which national courts are bound to safeguard. Theposition is complicated by the rather confusing terminology, which describes provisions ofCommunity law as being either “directly applicable”, or “directly effective”. The generallyaccepted view is that ‘directly applicable’ means that the provision is automatically part of thenational legal system as soon as it is promulgated by the Community authorities: no nationalmeasures of incorporation are necessary; while if a legal provision is said to be ‘directlyeffective’, it is meant that it grants individuals rights which must be upheld by the nationalcourts. Establishing direct effect is a matter of interpretation, and it is clear that specificprovisions of the Treaty, as well as specific provisions of regulations, directives or decisions,may be endowed with this quality.’34 On the other hand, article 189 of the EEC Treaty134 D. Wyatt and A. Dashwood, The Substantive Law of the EEC, 2nd ed., (London, Sweetand Maxwell, 1987) at 26. The issue of direct effect was raised for the first time in theGend en Loos case, where a private firm sought to invoke Community law against the Dutchcustoms authorities in proceedings in a Dutch tribunal. The tribunal made a reference to theEuropean Court for a ruling on the question whether the provision at issue was directly effective.The European Court decided that the provision in question was directly effective, and this wasaccepted by the Dutch Court. The ECJ’s ruling affirmed the existence of the doctrine andensured its survival as a principle of Community law. In its judgment the Court concluded that:Independently of the legislation of member states, Community law therefore notonly imposes obligations on individuals but is also intended to confer upon themrights which become part of their legal heritage. These rights arise not onlywhere they are expressly granted by the Treaty but also by reason of obligationswhich the Treaty imposes in a clearly defined way upon the institutions of theCommunity. [1963] E.C.R. at 12.53explicitly states that a regulation is “directly applicable in all member states”.The exact meaning and use of these terms, however, is not yet free from doubt; inparticular there is controversy about whether all Regulations are directly effective without beingdirectly applicable, and whether Directives can be directly effective without being directlyapplicable. 135Community Secondary LegislationThe chapter began with a brief overview of the primary and secondary sources ofCommunity law. We return now to a more complete discussion of Community secondarylegislation. The secondary sources of Community law result in a body of law generated by theCommunity itself in its quasi-autonomous capacity. These sources are considered ‘secondary’because their authority is derived from the provisions of the founding Treaties. Moreover in thehierarchy of legal norms they rank second to Treaty provisions. To all intents and purposes theyresemble delegated legislation. The importance of the law-making power of the Communitycannot be over-emphasized because, as stated by the distinguished jurist, A.J. Mackenzie Stuart,“the first and most essential means by which a supranational organization endeavours to carryout its objectives.. .resides in the law making power”.136One of the most striking characteristics of the legal order established by the Treaty is thecompetence vested in the Council, and to a lesser extent in the Commission, to enact legislation135 Of the academic literature on this topic, see in particular, J. Winter, ‘Direct Applicabilityand Direct Effect: Two Distinct and Different Concepts in Community Law’, (1972) 9 C.M.L.Rev. 425; T.C. Hartley, loc.cit., c.7.; G. Bebr, Development of Judicial Control of theEuropean Communities, (The Hague; Martinus Nijhoff Publishers, 1981) at 548-611.136 A.J. Mackenzie Stuart, The European Communities and the Rule of Law, (HamlynLecture 1977), (London: Stevens and Sons, 1977) at 14.54for the purpose of attaining the objectives of the Treaty. Thus, Article 189 provides that: “Inorder to carry out their task the Council and the Commission shall, in accordance with theprovisions of this Treaty, make regulations, issue directives, take decisions, makerecommendations, or deliver opinions.” Since “recommendations and opinions have no bindingforce,” emphasis will be placed on regulations, directives and decisions.Article 189 of the EEC Treaty provides that: “A regulation shall have general application.It shall be binding in its entirety and directly applicable in all Member States.” Regulationstherefore must be applied by the national courts without the intervention of any domesticimplementing legislation. They can and do create individual rights which the national courtsmust protect. They take effect on the day specified, or in the absence of such date on thetwentieth day following their publication in the Official Journal of the EC.Article 189 says of directives and decisions:“A directive shall be binding, as to the result to be achieved, upon eachMember State to which it is addressed but shall leave to the nationalauthorities the choice of form and methods.A decision shall be binding in its entirety upon those to whom it isaddressed.”Whereas a directive may be addressed only to a state, a decision may also be addressed to alegal person. An example of an individual decision would be a Commission ruling that a firmhad acted in breach of Articles 85 and 86 of the Treaty. Such a decision might be accompaniedby the imposition of a fine. An example of a decision addressed to a member state, by contrast,would be an act of the Commission requiring a member state to abolish or amend measures ofaid to national undertakings.137137 EEC Treaty, art. 93(2). Reg. 17, O.J. Sp. Ed. 1959-62; D.J.• Gijista et al., (eds.),Leading Cases of the Law of the European Communities, 4th ed., (Antwerp: Kluwer Law andTaxation Publishers, 1982), c.5.55Directives are the usual channels by which the Community introduces its measures intonational law. Unlike a Regulation, the law of the member state is not altered by a Directiveuntil steps are taken whereby the member state incorporates its provision into its domestic law.A directive will invariably state by what date this must be done. A directive is thus aninstruction to the member state to amend its laws to achieve a particular result within a particulartime. It is left to the member state itself to decide how this is to be done.It is clearly essential, if Community law is to be uniformly applied, that member statesshould implement Directives correctly, that is to say in such a manner as will achieve theirintended result. In addition, where a Directive is designed to harmonize the laws of memberstates as regards the relationship between individuals, it is not open to a member state to grantmore extensive rights or impose stricter obligations on the individuals concerned unless theDirective gives a discretion to do so. 138Prima facie therefore, a Directive has no effect in domestic law until it has beenimplemented by the member state concerned. In other words, until that moment an individualmust look to his/her domestic law to ascertain one’s rights. However, the Court of Justice hasdecided that in certain exceptional circumstances a Directive, or at least certain of its provisions,138 Once the national legislation has been enacted to implement a Directive, then the nationalcourts are under a duty to interpret the legislation to achieve the result required by the Directive.This follows from the obligation of the member states under art. 189(3) to achieve that resultand from their duty under art. 5 of the EEC Treaty to take all appropriate measures whethergeneral or particular, to ensure the fulfilment of that obligation. The duties are binding on allthe authorities of the member states, including their courts, and it follows that “national courtsare required to interpret their national law in the light of the wording and the purpose of thedirective in order to achieve the result referred to in art. 189(3)”. Von Colson v. LandNordrhein Westfalen, Case 14/83 [1984] E.C.R. 1891 at 1909, [1986] 2 C.M.L.R. 430 at 453.See also Johnston v. Chief Constable of Royal Ulster Constabulary, Case 222/84, [1987] Q.B.129 at 153, [1986] 3 C.M.L.R. 240 at 269.56may be directly effective in national law before it has been implemented.’39To conclude this chapter, then, the underlying philosophy of the Community and, indeed,the practical assurance of the Community development in accordance with the Treaty and theCommunity legislation is the doctrine of the supremacy of Community law. It is still a theorybecause in spite of the constitutional adjustments of the member states there is, generally, acertain amount of hesitation, if not reluctance, to accept the monist doctrine and by-pass nationallegislatures. At the root of this is an instinctive aversion to external laws and authoritiesinvading, as it were, the sacred preserve of sovereign states. These states have a long and proudhistory and a strong sense of national identity coupled with an individualistic notion of nationalinterest. Therefore, psychological barriers’40 have to be removed in order to make the legalobligations enshrined in Treaties and subordinate legislation meaningful and acceptable. In thecircumstance, it is not surprising that the lead in the process of the enforcement of Communitylaw has had to come from the Community Court.The main difficulty is that, apart from Article 189, the EEC Treaty contains no formal139 This continues to be a major development in the law of the European Community. Seeespecially, G. Howell’s, ‘European Directives - the Emerging Dilemmas’, (1991) 3 M.L.R. 456;P. Mead, ‘The Obligation to Apply European Law’ (1991) 16 E.L. Rev. 490; P. Mead,‘Marleasing and the European Sea’, (July 1991) 27 Law Society’s Gazette 19. The importantcase law includes, Van Duyn v. Home Office, Case 41/47, [1975] 3 All E.R. 190, [1979]E.C.R. 1337, [1975] 1 C.M.L.R. 1.; Von Colson and Johnston, supra, note 138.; Marshall v.Southhampton and South West Hampshire Area Health Authority, Case 152/84, [1988] 3C.M.L.R. 389, [1986] E.C.R. 723, [1986] Q.B. 401.; Duke v. G.E.C. Reliance Ltd., [1988]A.C. 618; Pickstone v. Freemans, [1989] A.C. 66.140 On the relationship between ‘citizens’ and the ‘nation-state’, see, in particular, L. Dobb,Patriotism and Nationalism: Their Psychological Foundations, (New Haven, Yale UniversityPress, 1964).; H. Laski, Studies in the Problem of Sovereignty, (New York: Howard Fertig,1968), c. 1.; F.W. Hinsley, Sovereignty, (New York: Basic Books, 1966), c. 1.57and unequivocal assertion of the supremacy of Community law.14’ Thus, it is the CommunityCourt in a number of judicial cases, that has formulated the principle of supremacy. The Court,as the guardian of legality within the Community has, from the start, been in a strong positionto define the status of the Community law and to give it precedence when in conflict with themunicipal law of the member states. While the Court of Justice in its judicial capacity has norival system of law to administer, and is only remotely concerned with the political consequencesof its decisions, the municipal courts have to face the practical problems arising from the conflictbetween domestic law and Community law forming part of their national system. The theorythat Community law is part of national law does not solve these problems.‘‘ Though the EEC Treaty contains no formal provisions that assert the supremacy ofCommunity law, Article 5 of the Treaty implicitly compels member states to adhere to thelegislative initiatives emanating from the Community organs. Article 5 states:Member States shall take all appropriate measures, whether general or particular, toensure fulfilment of the obligations arising out of this Treaty or resulting form actiontaken by the institutions of the Community. They shall facilitate the achievement of thecommunity ‘s tasks.They shall abstain from any measure which could jeopardise the attainment of theobjectives of this Treaty.58Chapter 4: Community Law in the United KingdomWhen Denmark, the Republic of Ireland, and the United Kingdom signed the Treaty ofAccession in 1972, they were required to take appropriate steps to accommodate Community lawwithin their legal systems. For Denmark and Ireland, formal constitutional amendments werenecessary. This course of action was not open to the United Kingdom, but it was essential thatParliament should authorize the reception of Community law and should empower British courtsto administer Community law. The force of law within the United Kingdom had to be given notonly to existing but also to future rules of Community law.Given these objectives, the sovereignty of the British Parliament was both an advantageand a source of difficulty. The advantage was that no formal constitutional amendment wasnecessary. It took only a few lines in an Act of Parliament to receive within the UnitedKingdom a massive body of Community law. The difficulty came in so far as the future wasconcerned: could any constitutional guarantee be given or an undertaking entrenched thatParliament would not at some future date either legislate to leave the Community or (whetherinadvertently or intentionally) legislate in a manner which conflicted with Community law?The view taken by the government in 1972 was that no absolute legislative undertakingby Parliament should be given, since a future Parliament could disregard such an undertaking.Instead, the accession legislation went as far as was thought possible in instructing British courtshow to apply Community law in the future.The introduction of Community law into the national legal system of the United Kingdomwas achieved by the enactment of the European Communities Act 1972. Nowhere in the 197259Act is it explicitly stated that Community law is supreme, but neither is there a provisionaffirming the sovereignty of Parliament. Consequently, the issue of supremacy remainsunresolved. It is here that English constitutional law and Community theory seem absolutelyirreconcilable. In this chapter, the European Communities Act is examined and the issue ofsupremacy arising from the 1972 Act is discussed. The issue of supremacy has receivedsubstantial attention from the judiciary, but the case law speaks with an uncertain voice.However, it will be shown that the British courts have shown a considerable degree ofwillingness to move away from the traditional idea of parliamentary sovereignty.Incorporation of Community Law into the United Kingdom Legal System: The EuropeanCommunities Act 1972The long-established rule’42 that “we take no notice of treaties until they are embodiedin laws enacted by Parliament, and then only to the extent that Parliament tells us”143 has beenapplied by British courts to the treaties establishing the European Communities as to othertreaties. Although, at least since the early eighteenth century, the customary rules ofinternational law have been regarded as part and parcel of the common law and directlyenforceable by British judges, the United Kingdom adopts a distinctly dualist approach totreaties.” A treaty to which the United Kingdom is a party is, as we have seen, the result142 See, Rustomjee v. , [1876] 2 Q.B. 69.143 Blackburn v. Attorney General, [1971] 2 All E.R. 1380, [19711 1 W.L.R. 1037, [1971]C.M.L.R. 784, per Lord Denning MR.‘ On the ‘monism’ and ‘dualism’ dichotomy see, G. Bebr, ‘Law of the EuropeanCommunities and Municipal Law’, (1971) 34 M.L.R. 48; L. Collins, European Community Lawin the United Kingdom, 4th ed., (London: Butterworths, 1990), c. 1.; O.H. Phillips, ‘Self-limitation by the United Kingdom Parliament’, (1975) Hastings Constitutional Law Ouarterly,443.60of an exercise of the prerogative, and as such is not self-embracing in the sense that theprovisions of such a treaty do not automatically have the force of law in the United Kingdom.The intervention of Parliament is necessary in order to enable the provisions of such a treaty tobe enforced in British courts. The classic statement of this doctrine is contained in an Opinionof the Judicial Committee of the Privy Council in 1937. Said Lord Atkin:It will be essential to keep in mind the distinction between (1) the formation, and(2) the performance, of the obligations constituted by a treaty, using that word ascomprising any agreement between two or more Sovereign States. Within theBritish Empire there is a well-established rule that the making of a treaty is anexecutive act, while the performance of its obligations, if they entail alteration ofthe existing domestic law, requires legislative action. Unlike some othercountries, the stipulations of a treaty duly ratified do not within the Empire, byvirtue of the treaty alone, have the force of law. If the national executive, thegovernment of the day, decide to incur the obligations of a treaty which involvealteration of law they have to run the risk of obtaining the assent of Parliamentto the necessary statute or the statutes.... Parliament, no doubt. . . has aconstitutional control over the executive: but it cannot be disputed that thecreation of the obligations undertaken in treaties and the assent to their form andquality are created, while they bind the state as against the other contractingparties, Parliament may refuse to perform them and so leave the State in default.In a unitary State whose Legislature possesses unlimited powers the problem issimple. Parliament will either fulfil or not treaty obligations imposed upon theState by its executive. The nature of the obligations does not affect the completeauthority of the Legislature to make them law if it so chooses.145This doctrine applies equally to the Community Treaties, so that the mere accession ofthe United Kingdom to those Treaties did not give them the force of law within the UnitedKingdom. Legislation was necessary to achieve that result and in the absence of suchlegislation, as the Court of Appeal has pointed out, the Community Treaties would fall outsidethe cognizance of British Courts.’46 The Treaties whereby the United Kingdom agreed to join145 A-G for Canada v. A-G of Ontario, [1937] A.C. 326 at 347.146 McWhirter v. Attorney General, [1972] C.M.L.R. 882 at 886.61the European Community were executive acts, affecting the relations between the UnitedKingdom and the other member states. In order to provide for the consequent changes of lawin the United Kingdom, an Act of Parliament was necessary.The mechanism for the introduction of Community law into the legal system in theUnited Kingdom is contained in the European Communities Act 1972147. In relation toquestions of interpretation and application the following provisions are relevant. The keyprovision of the 1972 Act is section 2(1) which provides:All such rights, powers, liabilities, obligations and restrictions from time to timecreated or arising by or under the Treaties, and all such remedies and proceduresfrom time to time provided for by or under the Treaties, as in accordance withthe Treaties are without further enactment to be given legal effect or used in theUnited Kingdom shall be recognized and available in law, and be enforced,allowed and followed accordingly; and the expression ‘enforceable Communityright’ and similar expressions shall be read as referring one to which the subsection applies.It is in this way that “a whole complex of rights and duties has been incorporated intothe law of the United Kingdom”.’48 In sweeping language section 2(1) says that allCommunity rules which are by Community law directly applicable or effective are given legaleffect in the United Kingdom without any further incorporation procedure. The subsectionprovides for the recognition and enforcement in the United Kingdom of directly effective orapplicable Community rights and obligations enjoyed by or imposed on member states or private147 Specifically, sections (2) and (3). Academic analyses of the Act include, Collins; bc. cit.,c. 2., c. 3.; J.D.B. Mitchell, et al., Constitutional Aspects of the Treaty and LegislationRelating to British Membership, (1972) 9 C.M.L. Rev. 134.; O.H. Phillips, loc.cit., c. 5.; G.Howe, ‘The European Communities Act 1972’, (1973) International Affairs 1.; E.H. Wall,European Communities Act 1972, (London: Butterworths, 1973).148 Collins, loc.cit. at 46.62individuals. It covers rights and obligations created by the Treaties themselves, by existing andfuture Community Regulations which take effect directly in the member states and by Directivesto the extent that they are directly effective or applicable.’49 It is a constitutional innovationto give effect to future Community legislation. In section 2(2)(a) power is granted to theexecutive to give effect by subordinate legislation to Community law which is not directlyapplicable or effective and in section 2(2)(b) power is granted to the executive to makeregulations to deal with matters arising out of or related to directly applicable Communitylaw.’5°By section 2(4) it was provided that “any enactment passed or to be passed, other thanone contained in this part of the Act, shall be construed and have effect subject to the foregoingprovisions of this section.” This means that, subject to clear provision to the contrary,subsequent enactments are to be read subject to the rule that directly applicable or effectiveCommunity law is to be given effect in the United Kingdom.Section 3(1) provides:For the purposes of all legal proceedings any question as to themeaning or effect of any of the Treaties, or as to the validity,meaning or effect of any Community instrument, shall be treatedas a question of law (and, if not referred to the European Court,be for determination as such in accordance with the principles laiddown by and any relevant decision of the European Court or anycourt attached thereto).149 It should be noted here that s. 2(1) only applies to those provisions which are accordeddirect effect or applicability. Neither s. 2(1) nor the section as a whole incorporates the EECTreaty “lock stock and barrel” (Re. Westinghouse Uranium Contract, [1978] A.C. 547 at 564.per Denning MR).150 See Appendix A.63and by section 3(2) judicial notice is to be taken of the Treaties, the Official Journal of theCommunities and any decision of, or expression or opinion by, the European Court. Section3 makes explicit what as a result of section 2 must be implicit, namely that Community law isto be treated in the United Kingdom as part of national law.The Supremacy IssueIt is generally accepted by the Community Court and by the original six member statesthat the Community Treaties have established a new and distinct system of law, the rules ofwhich are legally superior to the rules of the municipal laws of the member states. Thus, forthe duration of British membership, the municipal law of the United Kingdom must yield incases of conflict to the superior Community law. To the generations of students schooled in theDiceyan orthodoxy such a prospect is no doubt unthinkable; but nevertheless it is one of theobligations of membership. The implications were clearly summarized in a 1967 White Paper:The Community law having direct internal effect is designed to take precedenceover the domestic law of the Member States. From this it follows that thelegislation of the Parliament of the United Kingdom giving effect to that lawwould have to do so in such a way as to override existing national law so far asinconsistent with it. This result need not be left to implication, and it would beopen to Parliament to enact from time to time any necessary consequentialamendments or repeals. It would also follow that within the fields occupied bythe Community law Parliament would have to refrain from passing freshlegislation inconsistent with that law as for the time being in force. This wouldnot however involve any constitutional innovation. Many of our treatyobligations already impose such restraints - for example, the Charter of theUnited Nations, the European Convention on Human Rights and GATT.’5’151 Great Britain, Cabinet Office. Legal and Constitutional Implications of United KingdomMembership of the European Communities. Cmnd. 3301, Session 1966-67, (London: HerMajesty’s Stationary Office, 1967), para. 23.64The 1967 White Paper stated that Parliament will have to refrain from passing freshlegislation inconsistent with Community law and remarked this was by no means an innovationbecause of existing restraints under other treaties. But the critical question is whether thedoctrine of Parliamentary sovereignty means that such restraints must always be voluntarilyimposed by Parliament or whether they can be compulsorily guaranteed.The application of the orthodox doctrine of the absolute sovereignty of Parliament tostatutes implementing treaty provisions into United Kingdom law has meant that such statuteshave been regarded as in no way different from ordinary statutes and may be either expresslyor impliedly amended or repealed by subsequent inconsistent statutes.’52 It is true that thereis a legal presumption that Parliament does not intend to derogate from international law, butsuch a presumption cannot prevail in the face of an expressly inconsistent subsequentenactment.’53 If this doctrine were to be applied to Community law it would hardly satisfythe Communities since there would be no legal guarantee of Parliament’s good behaviour.There have been a variety of possible solutions to this problem put forward. Some aresuggested in the writings of those contemporary constitutional scholars who challenge theorthodoxy of Dicey and his followers. Professor Mitchell has argued that the Act of Union withScotland 1707 is fundamental law which imposes legal restraints on the United KingdomParliament and just as a new legal order was established in 1707, so there is no reason whyanother new legal order in the context of the Communities should not be created in 1972•1M152 E. Ellis, ‘Supremacy of Parliament and European Law’, (1972) M.L.R. 375.153 See, II v. Coilco Dealings Ltd., [1062] A.C. 1, [1961] 1 All E.R. 762.154 See, Mitchell et al., loc.cit.65Professor Heuston, while not denying that Parliament is sovereign in terms of the area of herpower, maintains that limitations may be imposed on the manner and form by which that poweris exercised.155 Others have suggested that reliance should be placed on the gradual emergenceof a constitutional convention by which it would be recognized that Parliament could not legislatecontrary to Community law’56.In dealing with the problem of the supremacy of Community law, the EuropeanCommunities Act adopts a subtle approach which does not incorporate any of the fundamentalistsolutions described above, nor is it content to rely on the uncertain emergence of conventionallimitations. The act avoids any outright statement of the supremacy of Community law. Sucha statement would have been contrary to the main stream of British constitutional practice andit would in any event have been politically dangerous to have adopted such an approach. Thesupremacy of Community law in the United Kingdom is effectively guaranteed by the combinedoperation of provisions of sections 2 and 3 of the Act. As we have seen section 2(1) givespresent and future Community law legal force in the U.K.. Thus, since the doctrine of theprimacy of Community law is part of that law, section 2(1) makes that doctrine part of the lawof the United Kingdom. Moreover, the effectiveness of that doctrine is guaranteed by twofurther provisions - sections 2(4) and 3(1).When these provisions were debated in Parliament, it was widely agreed that they didnot exclude the possibility that the United Kingdom Parliament might one day wish to repeal the155 See, supra, chapter 1, and Heuston, loc.cit.156 A. Martin, ‘The Accession of the United Kingdom to the European Communities:Jurisdictional Problems’, (1968-69) 6 C.M.L. Rev. 7.66Act and thus effectively prevent the continued operation of Community law within the UnitedKingdom. In this sense the ultimate sovereignty of Westminster was not affected, as ministersadmitted, even though they refused to allow a statement to this effect to be included in theAct. 157 But there was and continues to be uncertainty about a less extreme situation, wheneither deliberately or inadvertently an Act passed after 1972 contains a provision which isinconsistent with an established rule of Community law. In this situation, we have already seenthat the European Court of Justice will insist that Community law must prevail. But should theBritish courts take up the same position (as section 3 of the 1972 Act would indicate is theirduty), or does the later Act of Parliament override the 1972 Act, including sections 2 and 3, tothe extent of requiring the conflict to be resolved from a British standpoint?In Parliament in 1972, ministers emphasized that section 2(4) contained what wasessentially a rule of construction, so that if an apparent conflict arose between a later Act andCommunity law, the British courts were if at all possible to construe the Act in such a way asto achieve consistency rather than conflict. Lord Colville said, “It is only if they cannot do sothat the law of the English courts allows them to give precedence to the later English Act.”58Speaking in the same debate, the judge, Lord Diplock, said, “This clause is designed to ensurethat the courts, when they are construing that subsequent Act of Parliament, will recognize thatit was the intention of Parliament not to conflict with the Community law.”59 But, said LordDiplock, when a conflict could not be resolved by construction, the courts would be bound to157 H.C. Deb., 5 July 1972, cols. 556-644.158 H.L. Deb., 8 August 1972, cols. 1026-7.159 col. 1029.67give effect to the subsequent Act of Parliament.The question of supremacy has received substantial attention from the judiciary but thecase-law under the European Communities Act does not speak with a certain voice. Prior to1989, British courts never had to confront the question of a stark conflict between an Act ofParliament and Community law. True, implicit conflicts did arise, however, British judges wereable to resolve them by skillful demonstrations of constructive interpretation. In 1989, two casesarose where a conflict between a United Kingdom statute (passed after the EuropeanCommunities Act had come into force) and Community law could not be so easily resolved.Lord Diplock had suggested that in this event British courts would be bound to give effect to thesubsequent Act of Parliament. Recent rulings by the European Court in Factortame Ltd. andothers v. Secretary of State for Transport and Factortame (No. 2)160 allowing national courtsto suspend, or to declare void, Acts of Parliament which conflict with Community law, suggests,however, that Lord Diplock’s assertion is erroneous. The rulings have brought with them someconcern that the ultimate bastion of the British constitution, the supremacy of Parliament, couldfinally be breached. The Factortame judgments are particularly interesting for their implicationsconcerning the obligations upon United Kingdom courts when faced with supremacy issues andit is to these which I now turn.160 Factortame Ltd. and others v. Secretary of State for Transport, Case C-221/89, (judgmentof 25 July, 1991), [1991] 3 All E.R. 769, ECJ, [1990] 2 A.C. 85, H.L.; Factortame (No. 2),Case c-213/89 (judgment of 19 June, 1990, ECJ, and judgment of 11 October, 1990, H.L.)[1991] 1 All E.R. 70, (ECJ), and 107 (H.L.).68The Courts Respond: The Factortame SagaThe background to the complex litigation in Factortame16’is to be found in the EEC’sattempt to conserve fish stocks by means of a system of national quotas (EC Council Regulations170/83 and 172/83). Spain, which had not been a member of the Community when theregulations were adopted, fared badly in the allocation of quotas. As a result, a number ofSpanish fishing companies attempted to secure part of the British quota by buying up trawlersalready registered as British or by re-registering their existing vessels under the British flag.This practice, known as ‘quota-hopping’, was comparatively easy, because the principalrequirement for registration - that a British ship be British-owned - could be satisfied byestablishing a subsidiary company in the United Kingdom.The United Kingdom took a number of steps to prevent quota-hopping. It introducedrequirements regarding the nationality and residence of crew members of British fishing vesselsand requirements that they operate from United Kingdom ports. The government considered,however, that these conditions were proving too difficult to enforce. It therefore took steps tocontrol the ownership of British fishing vessels. Part II of the Merchant Shipping Act 1988provided that a fishing vessel would qualify for registration as a British ship only if it was ownedby British citizens resident in the United Kingdom or by companies of whose shareholders anddirectors were British citizens resident in the United Kingdom. The Merchant Shipping Act gaverise to a set of proceedings.161 In addition to the law reports, see, D. Oliver ‘Fishing on the Incoming Tide’, (1991) 3M.L.R. 442; M. Ross, ‘Legal Order of the Communities: Factortame’, 15 E.L. Rev. 476.; E.Szyszczak, ‘United Kingdom Sovereignty: Crisis, Compliance, Confusion, Complacency’, 15E.L. Rev. 480.; S. Swabey, ‘Factortame: English Law Overriden’, 134 Solicitor’s Journal 1198.69Factortame v. Secretary of State for Transport, was an action for judicial review in theEnglish courts. The applicants were a number of companies, all of which were substantiallySpanish owned and which operated fishing vessels affected by the 1988 Act. They challengedall of the new ownership conditions on the ground that the new conditions violated their rightsunder Community law, in particular under Articles 52, 58, 221 and 7 of the EEC Treaty. Allof these provisions have direct effect and therefore must be enforced by national courts. TheUnited Kingdom countered that the provisions of the 1988 Act were not incompatible with thefundamental provisions of Community law but were intended only to ensure that fishing vesselsflying the British flag had a genuine link with the United Kingdom. The government maintainedthat international law entitled each state to determine the conditions under which a ship mightfly its flag and that Community law had not removed that right.The judicial review proceedings clearly raised important questions of Community law andthe Divisional Court’62 requested a preliminary ruling from the Court of Justice under Article177 of the EEC Treaty in respect of those questions. It was accepted by all parties that therewould be a considerable delay before that ruling was given (the Court of Justice ruled on thesubstantive questions in July, 1991 - two years after the Divisional Court’s request for apreliminary ruling). Meanwhile the applicants argued that if the 1988 Act were applied duringthat period, their businesses would suffer irreparable harm for which they would receive nocompensation even if the Court of Justice subsequently ruled in their favour. The Secretary ofState, on the other hand, contended that if the operation of the Act were suspended, the will ofParliament would have been thwarted and considerable damage done to the United Kingdom162 [19891 2 C.M.L.R. 353.70fishing industry when it was by no means clear that the Court of Justice would reject the UnitedKingdom’s defence of the 1988 Act as compatible with Community law.The Divisional Court sided with the applicants and therefore granted an interim injunction‘disapplying’ the relevant provisions of the 1988 Act and restraining the Secretary of State fromenforcing them in respect of the applicants until the Court of Justice had given its ruling on thequestions referred. The Factortame case then went to the House of Lords on the questionwhether the English courts had jurisdiction to grant an interim relief of this kind.The House of Lords accepted that if the Court of Justice were to rule in favour to theapplicant companies on the substantive questions referred by the Divisional Court, the applicants’directly effective Community law rights would prevail over the Merchant Shipping Act 1988.This is the most authoritative recognition by an British court to date of the principle of thesupremacy of directly effective Community law. The House of Lords held, however, that thecourts had no jurisdiction under traditional English law to grant an interim injunction‘disapplying’ an Act of Parliament.’63 Nevertheless, the House made a second reference tothe Court of Justice requesting a ruling on whether Community law required or empowerednational courts to grant interim relief in a case of this kind even though the national court hadno such power under national law.In view of the urgency of the issues raised by the House of Lords, the Court of Justicegave its ruling on these questions before it considered the substantive questions referred by theDivisional Court. In a brief judgment, Factortame (No. 2)1M, the Court of Justice reaffirmed163 [1989] 2 All E.R. 692.164 Loc.cit., note 160, ante.71the principle- by now well established in its case law- that a national court must set aside a ruleof national law which prevented directly effective Community law from having full force andeffect. The court then held that where a litigant was seeking to assert rights which he/sheclaimed to possess under directly effective Community law and the existence of those rights wasthe subject of a reference to the Court of Justice:the full effectiveness of Community law would be... impaired if a rule ofnational law could prevent a court seized of a dispute governed by Communitylaw from granting interim relief in order to ensure the full effectiveness of thejudgment to be given on the existence of rights claimed under Community law.It follows that a court which in those circumstances would grant interim relief,if it were not for a rule of national law, is obliged to set aside that rule.165In short, Community law required the British courts to set aside the rule that there was nojurisdiction to grant interim relief suspending the operation of an Act of Parliament and that thecourts could not grant interim injunctions against the Crown.The case then went back to the House of Lords166 for the House to determine whetherit was appropriate to grant interim relief until such time as the Court of Justice should give aruling on the substantive questions referred by the Divisional Court. The difficulty was thatthere were no criteria in English law for the grant of an interim injunction against the Crownto suspend the operation of an Act of Parliament, because prior to the decision of the Court ofJustice, the British courts had no jurisdiction to grant such an injunction.The House of Lords was unanimous, however, that the applicants had shown a strongprima fade case that the 1988 Act would be held to be contrary to directly effective rules of165 Ibid. at 105.166 [1991] 1 All E.R. 70 at 106.72Community law. The House therefore granted an interim injunction restraining the Secretaryof State from withholding or withdrawing registration from the applicants’ vessels on thegrounds introduced by the 1988 Act.One year later, in July 1991, the long awaited answers to the substantive questions raisedin Factortame were delivered by the Court of Justice.’67 The Court held that although it wasfor member states of the EEC to determine, in accordance with the general rules of internationallaw, the conditions which had to be fulfilled in order for fishing vessels to be registered in theirregisters and granted the right to fly their flag, in exercising that power a member state had tocomply with the rules of Community law. Accordingly, the Court declared that the statutorysystem governing the registration of British fishing vessels set out in Part II of the MerchantShipping Act 1988 was contrary to Community law, in particular article 52 of the EEC Treaty,because the nationality, residence and domicile requirements contained in the legislation werecontrary to the principles of freedom of establishment and non-discrimination of nationals ofother member states on grounds of nationality. Consequently, the Court ruled that theregistration system in the 1988 Act was ineffective in relation to nationals of other memberstates. As has already been pointed out, the House of Lords has stated, without reservation, thatit will be bound to follow the ruling of the ECJ on the substantive questions posed inFactortame. Consequently, the House of Lords is, at present, poised to declare invalid thatportion of the Merchant Shipping Act found to be in contradiction to the United Kingdom’sEuropean obligations.As a matter of United Kingdom constitutional law, the Factortame cases are of immense167 [1991] 3 All E.R. 769, note 160, ante.73significance. The principle that Acts of Parliament are now subordinate to directly effectiverules of Community law must now be regarded as clearly established. Not only has the Houseof Lords accepted that such Community rules must prevail even over subsequent legislation oncea conflict between the two has been clearly established, it has accepted that the British courtshave a duty to give effective interim protection to Community law rights by preventing theapplication of statutory provisions when there are strong grounds for suspecting that theapplication of those provisions will be found to be contrary to Community law. As Sir WilliamWade has put it, “Acts of Parliament are now subject to a higher law, and to that extent theynow rank as second-tier legislation.”68This aspect of the case has, not surprisingly, been received with consternation by thosewho believed that the Westminster Parliament enjoyed unfettered sovereignty. Yet, as LordBridge pointed out in Factortame (No. 2):If the supremacy within the European Community of Community law over thenational law of the member states was not always inherent in the EEC Treaty itwas certainly well established in the jurisprudence of the Court of Justice longbefore the United Kingdom joined the Community. Thus, whatever limitation ofits sovereignty Parliament accepted when it enacted the European CommunitiesAct 1972 was entirely voluntary.’69Such an approach is fully in accordance with the principle laid down by the Court of Justice inthe Simmenthal case that “a national court which is called upon to apply provisions ofCommunity law is under a duty to give full effect to those provisions, if necessary refusing ofits own motion to apply any conflicting provision of national legislation, even if adopted168 H.W.R. Wade ‘What Has Happened to the Sovereignty of Parliament?’, (1991) 107 L.Q.Rev. 1 at 3.169 [1991] 1 All E.R. 70 at 108.74subsequently” 170•Notwithstanding the Factortame saga, the British courts have shown a considerable degreeof willingness to move away from traditional ideas of parliamentary sovereignty. In MacarthysLth v. Smith, Lord Denning said:The provisions of Article 119 of the EEC Treaty take priority over anything inour English statute on equal pay which is inconsistent with Article 119. Thatpriority is given by our own law. It is given by the European Communities Act1972 itself. Community law is now part of our law: and, whenever there is anyinconsistency, Community law has priority. It is not supplanting English law.It is part of our law which overrides any other part which is inconsistent withit.’7’In Aero Zipp Fasteners v. YKK Fasteners (U.K.) Ltd.’72, Lord Justice Graham saidobiter that the European Communities Act had “enacted that relevant Common Marketlaw.., should, where there is a conflict, override English law” In Marshall v. Southhampton andSouth West Hants. Health Authority, an industrial tribunal found that there was a conflictbetween Community law, which entitled the plaintiff to adequate compensation, and the .SDiscrimination Act 1975, which placed such a low limit on compensation as to make itinadequate; the tribunal, invoking the principle of supremacy of Community law, decided to‘ignore the limit’ contained in the 1975 Act and to award the plaintiff the compensation to whichshe was entitled under Community law.’73 Moreover, Mr. Justice Hoffman in Stoke on Trent170 [1978] E.C.R. 629 at 645.171 [1981] Q.B. 180 at 200.172 [1973] C.M.L.R. 819 at 820.173 [1988] 1 C.M.L.R. 5 at 9-10.75City Council v. B & 0 plc,174 stated that the EEC Treaty is the supreme law of the UnitedKingdom and that Parliament had surrendered its sovereignty on matters of social and economicpolicy regulated by the Treaty.Professor Hood Phillips175 has argued that such cases are concerned only withinterpreting English statutes to make them conform with Community law. But it is respectfullysubmitted that this explanation is unconvincing. Judges are trained to use words carefully; and,when judges use words like ‘priority’, ‘override’, ‘supremacy’ and ‘ignore’, they are not thesorts of words which judges use when they are doing nothing more than interpreting Acts ofParliament.However, there are limits to the willingness of British courts to accept the supremacy ofCommunity law. In Garland v. British Rail Engineering Ltd., the House of Lords said:The instant appeal does not present an appropriate occasion to considerwhether. . . anything short of an express positive statement in an Act of Parliamentpassed after January 1, 1973, that a particular provision is intended to be madein breach of an obligation assumed by the United Kingdom under a Communitytreaty, would justify an English court in construing that provision in a mannerinconsistent with a Community treaty obligation of the United Kingdom... •176This statement clearly implies that English courts will apply an Act of Parliament whichcontains an express positive statement that it is intended to violate Community law.’77174 [1990] 3 C.M.L.R. 31.175 See, ‘Has the “Incoming Tide” Reached the Palace of Westminster?’, (1979) 95 L.Q.Rev. 167., and ‘High Tide in the Strand?: Post-1972 Acts and Community Law’, (1980) 96L.Q. Rev. 31.176 [1983] 2 A.C. 751 at 771, (italics added).177 But the Factortame litigation answers the question which the House of Lords left openin Garland, and makes clear that nothing short of such an express positive statement will justifyan English court in construing an English statute in a manner inconsistent with the U.K.’sobligations under Community law.76Similarly, in Macarthys Ltd. v. Smith, Lord Denning said: “If the time should come when ourParliament deliberately passes an Act with the intention of repudiating the [EEC] Treaty or anyprovision in it or intentionally of acting inconsistently with it and says so in express terms Ishould have thought that it would be the duty of our courts to follow the statute of ourParliament”78.Thus, the position appears to be that British courts will apply an Act of Parliament whichexpressly states that it is intended to violate or repudiate a rule of Community law, or to repeal,amend or limit the application of the European Communities Act; but in all other cases they willrecognize the supremacy of Community law over the sovereignty of the British Parliament. Inone sense then, parliamentary sovereignty remains in being and could be exercised should afuture government wish the United Kingdom to leave the European Community. But, until thattime arrives, British membership in the Community necessarily entails considerable restrictionson the scope for national decision making and hence for national legislation. Britishconstitutional doctrine, thus, remains in an uneasy theoretical conflict with basic principles ofCommunity law.178 [1979] 3 All ER 325 at 329, (italics added). But he added: “Unless there is an intentionaland express repudiation of the Treaty, it is our duty to give priority to the Treaty.”77Chapter 5: The Politics of Sovereignty in the United Kingdom TodayUp to this point I have sought primarily to examine the impact that Britain’s obligationto European Community law has had on the fundamental constitutional principle of parliamentarysovereignty. To facilitate this, my discussion has been confined to the sovereignty of the BritishParliament in a ‘legislative’ sense, as a doctrine of constitutional law. From this legalisticperspective, strictly speaking, parliamentary sovereignty means that there are no legal limits tothe legislative authority of Parliament. Consequently, the legislation of Parliament cannot beoverridden except by the express wish of Parliament itself. In the absence of constraints,Parliament possesses the freedom to enact what it sees fit, subject only to the will of the generalpopulation or future parliaments. Chapter 4 revealed that Britain’s obligation to adhere toCommunity law has now begun to impose some considerable restrictions on the legislativeauthority of Westminster.Apart from the narrow legislative interpretation of the doctrine, parliamentary sovereigntyhas always been linked in Britain to perceptions of national sovereignty. This is understandable,for once a nation loses control over the laws it will pass to govern and regulate itself, it followsthat national sovereignty -- or the capability of a nation to act in its own self-interest -- is lost.Since the United Kingdom’s accession to the European Community, the perceived threat toBritish sovereignty has been the primary reason that a clear and united national vision of the rolethat the U.K. ought to play in European integration has, to date, remained so elusive.As this paper has endeavoured to convey, membership in the EC has required thatmember states surrender some domestic control over certain classes of subjects, as circumscribedby the Treaty of Rome, to the Community’s central institutions. The Court of Justice, we have78seen, continues to remind member states of this new political reality. Hence in Britain today,political discussion of membership in the EC, while invariably linked to parliamentarysovereignty in the legalistic sense, is predominately focused upon perceived threats to nationalsovereignty. This helps to explain the rift that has opened up in Prime Minister John Major’sConservative caucus, where there exists a strong element on the right-wing of the party thatspeaks vociferously against a strengthened European union. MPs in the bloc fear that asEuropean union increases, what will follow is the progressive derogation of the right of self-government, to the stage at which it might be neither theoretically nor practically within thepower of Parliament to reverse the process of change from independent self-governing nationto a form of EC province.In part one of this chapter, recent political developments in the United Kingdomregarding the European Community are assessed, with particular reference to the historicalagreements on increased political and monetary union reached by all 12 EC member states atMaastricht, The Netherlands, December 9-11, 1991, and to the divisions present in theConservative party over the direction that Britain should move regarding closer European union.This will set the stage for part two of the chapter, where, in light of the EC, the dimensions ofparliamentary sovereignty as an issue in British politics today are explored.The EC in British Politics TodayThe United Kingdom has proved a difficult and somewhat cool partner in the Europeancompact. Both major political parties are much to blame, primarily for the lack of nationalpolicy for Europe and the lack of a clear vision of the Community as well as the role the British79ought to play in the European integration.’79 Under the new Conservative leadership of PrimeMinister John Major, however, such an indecisive approach to the EC may well be a thing ofthe past. It seems possible that Britain may finally possess a leader firmly committed to aBritish future in the EC. As Major himself has stressed, “for many of my generation, Europeis a cause of political inspiration” 180 But, if the EC-related strife within his own Conservativeparty is any indication, a clear and united national vision of the role the British ought to playin European union has yet to be formulated.Leading his first party conference in October 1991, in Blackpool, England, the PrimeMinister delivered an important speech that indicated a more positive approach to the EuropeanCommunity than that pursued by his predecessor Margaret Thatcher’81. In his speech Majorsaid, “My aims for Britain in the Community can be simply stated. I want us to be where webelong, at the very heart of Europe, working with our partners in building the future”)82Major stressed his desire for Britain’s greater participation in Europe by saying it was importantto work “together as friends and fellow builders of a more united Europe”83,however, he also179 For an excellent example, see, M. Heseltine, The Challenge of Europe: Can Britain Win,(London: Weidenfeld and Nicolson, 1989). Contrast this with Enoch Powell’s views in R.Ritchie, Enoch Powell on 1992, (London: Anaya Publishers, 1989).180 The Times, 09 March, 1992.181 Conservative Prime Minister of Great Britain, 1979-90. During her term as PrimeMinister, Thatcher was a virulent opponent of British integration into Europe. She believed thatthe EC should be an elaborate free trade zone and nothing more. Her staunch opposition togreater European union was most clearly defined in her now famous anti-Europe speech ofSeptember 1988, see infra, note 212. Thatcher’s inflexibility on the European issue is nowconsidered one of the primary reasons for her sudden downfall in 1990, see, P. Riddell, ThThatcher Era, (Oxford: Blackwell, 1991).182 The Times, 12 October, 1991.183 llici. 11 October, 1991.80made clear that the United Kingdom favoured cautious progress toward closer integration. TheEuropean Commission President, Jacques Delors, a leading advocate of swift moves towardfurther EC integration, responded to Major’s address suggesting that the Prime Minister’sposition “shows that the British attitude has certainly changed, not only in style but in substance,toot!184Prime Minister Major cautiously demonstrated his commitment toward closer Europeanintegration at the EC summit meeting held at Maastricht, The Netherlands, from December 9-11,1991. The meeting concluded the year-long parallel intergovernmental conference on Europeanpolitical union (EPU) and economic and monetary union (EMU), which had opened in Rome inDecember, 1990. The Maastricht summit ended with agreement on a treaty framework forEuropean union incorporating the EPU and EMU agreements and setting a timetable for theirimplementation, and providing for a new security/defence dimension to European cooperation.185The treaties would expand the EC’s powers over matters that were previously thejurisdiction of national governments and would set the introduction of a single currency for theEuropean Community by 1999. At the heart of the leader’s efforts was a change from the EC’straditional role of fostering free and open trade among its members to a community whose goalwas making pan-European policies on social, economic, foreign and security affairs.At the summit, the United Kingdom continued to hold the most cautious position ongreater integration, but, as The Times reported, Prime Minister Major was “at the centre of thenegotiations, and was widely seen as playing a more constructive role in the process than his184 The Sunday Times, 13 October, 1991.185 The Times, 12 December, 1991.81predecessor, Margaret Thatcher” •186 Britain chose not to join a pian by the 11 other nationsto expand EC powers over social issues.’87 Britain also won an agreement that would allowthe British Parliament to choose at a later date whether to join the single European currency.’88In summary, the key provisions of the Maastricht treaties and the accompanying protocolsagreed on by the leaders:- Committed the EC to launching a common currency for at least some nations by 1999.Britain and Denmark were allowed to ‘opt out’ of joining.’89- Sought to establish common foreign policies for the 12 members.- Laid the groundwork for a common defense policy under the Western European Union(WEU) while preserving the primacy of NATO.- Expanded the policy issues in which the EC would have a voice.- Pledged increased aid for the Community’s four poorest nations: Ireland, Greece,Portugal and Spain.186 The Sunday Times, 13 December, 1991.See, infra, note 190.188 See, infra, note 189.189 The new treaty on economic and monetary union built on previous agreements that hadestablished three stages in the process toward the creation of a single European currency. TheMaastricht pact set a definite mechanism for implementing the third stage-- including thecreation of the currency-- by January 1, 1999. The EC was currently in stage one of themonetary process, in which member nations had to abolish restrictions on capital movements andadopt economic plans that would help lead to a ‘convergence’ in economic performance amongthe 12. The new treaty fixed January 1, 1994 as the beginning of stage two. A EuropeanMonetary Institute would be created to strengthen cooperation of the member nations’ centralbanks and to prepare for the creation of the European Central Bank, which would come intoeffect in stage three of the process. During stage two, states would seek to meet conditions forconvergence of their economies. By the end of 1996, the EC heads of government would meetto see whether a majority of states had met the criteria and whether they wanted to go aheadwith stage three which would establish a single currency for the qualified nations and theEuropean Central Bank. A separate protocol gave the U.K. Parliament the opportunity to ‘optout’ of joining the third stage, though the economic consequences of doing so were expected tobe adverse.82- Slightly increased the powers of the 518-member European Parliament.- Gave the EC a leading role in social policy. Britain was not included in this plan.19°The Maastricht treaties would amend and add to the 1957 Treaty of Rome and the 1987Single European Act. The treaties cannot go into effect until ratification by all 12 memberstates. In Britain, after ratification, the Maastricht agreements would be implemented byamendment to the European Communities Act.In a national referendum in Denmark, June 2, 1992, the Danish population narrowlyrejected the treaty on European Union agreed at Maastricht.’9’ The result of the referendumwas a serious blow to the Maastricht Pact. Accordingly, on June 4, 1992 EC Foreign Ministersheld an emergency meeting on the Danish vote. The ministers agreed that the other 11 nationswould press ahead with their national ratification processes while deciding what to do aboutDenmark’s rejection. The process toward closer unity was rekindled, however, when Irishvoters in the Republic of Ireland on June 18, 1992 voted to approve the Maastricht settlementby a margin of more than two-to-one. 192Prime Minister Major’s mix of enthusiasm and caution in crafting Britain’s position at‘° A protocol on social policy was adopted by the 11 nations. In the protocol, the 11 agreedto use EC institutions to ‘support and complement’ member governments in the areas ofworkers’ health and safety, sexual equality in the work place, and providing information andconsultation for workers. Decisions taken by the 11 would not apply to Britain. John Majorhad argued that such powers could reimpose labour regulations that Britain had removed underMargaret Thatcher. The protocol would allow majority voting among the 11 to decide mostissues. Major initiatives, such as those regarding social security would require unanimousapproval. Actions taken by the 11 would not be EC law, but would nonetheless become law inthe 11 nations.191 The Times, 03 June, 1992.192 The Guardian, 21 June, 1992.83Maastricht satisfied many of the pro-European and anti-European MPs at Westminster whocontinue to disagree on the direction the United Kingdom ought to take regarding Europeanunion. On December 19, 1991, at the conclusion of a two day debate about the outcome atMaastricht, the House of Commons voted 339-to-253 in favour of a motion supporting Major’snegotiations at the summit.’93During the debate, however, both the opposition Labour and Liberal Democratic partiesaccused the government of not going far enough in its commitment to European union.Outgoing opposition Labour Party leader Neil Kinnock criticized the Prime Minister’sperformance at Maastricht primarily because of Britain’s failure to join the emerging Europeansocial charter.’94 Moreover, argued Kinnock:the government, whose duty was to resist development of a two-speedCommunity, had contrived to get one, with Britain in the slow lane. Mr. Majorspent his whole time at Maastricht getting two escape clauses. That is not theaction of a Prime Minister who wanted to be at the ‘heart of Europe’, but of aPrime Minister who wanted Britain at the tail of Europe.’95Liberal Democratic leader Paddy Ashdown, while supporting the general developmentsat Maastricht, condemned the British government for “squandering yet another Europeanopportunity for Britain”.196 Ashdown reflected the feelings of those in Parliament who believethat Britain is not moving decisively enough toward a commitment to European integration,193 H.C. Deb., vol. 201, 19 December, 1992, col. 551.‘‘ The Parliamentarian 73, no. 2 (April, 1992) at 129.195 H.C. Deb., vol. 201, 18 December, 1992 at 286-287. Prominent Conservative, SirNorman Fowler defended Major’s actions, stating to the House of Commons that because of thePrime Minister’s successful demands, Britain “was uniquely well placed to make a sensiblejudgement on an important matter at the right time in the future”. I1jcJ. at 293.196 The Telegraph, 15 December, 1992.84when he said:Maastricht marks a decisive and irreversible step towards integration and unityfor Europe. It could have been a decisive moment for Britain, too, the momentwhen Britain decided to end 40 years of indecision and ambivalence. It couldhave been the moment when Britain declared without qualification once and forall that its future belongs to a United and dynamic Europe. It could have beena historic week for Britain as well as for Europe, but it was not. The PrimeMinister declared. . .that Maastricht was a good deal. Maybe it was a good dealfor the Conservative party but, it was a very bad deal for this country. Onceagain, we find ourselves in a vacuum of European uncertainty.’97Britain’s Labour party has become steadily more pro-Europe. It started after the 1983election, which Labour lost heavily, partly because it campaigned for withdrawal from theEuropean Community. The pro-EC move accelerated in 1988 when Jacques Delors launchedthe BC Social Charter which he vaunted at the British Trades Union Congress that year. It wastriumphantly rewarded the following year when Labour replaced the Tories as the largestcontingent from a single country in the European Parliament elections.’98 The increasingenthusiasm of Britain’s broad left (including the Liberal Democratic Party which has always beenpro-EC) for the environment, consumer protection and constitutional reform has, according toopinion surveys’99, whetted its interest in the Community where these issues are seen to bedealt with better.During the election campaign leading up to the British general election of April 9, 1992,there was little discussion of Britain’s future within the European Community and itsimplications for national sovereignty. In the run-up to the election, attention shifted almost‘ H.C. Deb. vol. 201, 18 December, 1992, cols. 300-301.‘98D. Martin, Europe: An Ever Closer Union, (Nottingham: European Labour Forum, 1991)at 131.The Times, 14 January, 1992, and 25 March, 1992.85overnight from the EC to domestic concerns about the state of the British economy.200 To alarge extent this can be attributed to a keen awareness which the three major political partiesdisplayed of the vague and uncommitted attitude of the electorate at that time towards Britain’sposition within the EC. On March 10, on the eve of the dissolution of Parliament marking thestart of the election campaign, a national poii commissioned by the Telegraph revealed that only39 percent of the general population had decided whether or not to support the agreementsreached on political and economic union at Maastricht.201 Moreover, as the campaignprogressed, other opinion polls consistently marked economic interests and domestic politicalissues, such as Scottish devolution and electoral reform, as the primary area of concern amongBritish voters.2° As a result, both the Tories and the Labour Party responded predictably byignoring the thorny issue of Britain’s future in the EC and the sovereignty question. Both majorparties instead chose to emphasize domestic issues, specifically commitments to lower taxes,fighting economic recession and revamping the National Health Service.203 The LiberalDemocrats meanwhile, vigorously championed the need for electoral reform.204The lack of discussion about Britain’s future in the EC was reflected in two of Britain’sleading newspapers. A survey by the author of the Times and the Telegraph between March 11and April 9, 1992 revealed only five articles containing significant election discussion relating200 See, for example, ‘The General Election of 1992’ in M. Bedford, ed., Dod’sParliamentary Guide to the General Election of 1992, (London: Dod’s, 1992).201 The Telegraph, 10 March, 1992.202 See, The Times, 06 March, 12 March, 1992; The Telegraph, 20 March, 1992; and theObserver, 15 March, 1992.203‘The General Election of 1992’, loc.cit. at 3-4.204 J12jj., at 5.86to the EC, and virtually nothing relating to Britain’s concern for national sovereignty in a moreunified Europe.205 All five reports deliberated upon technical economic merits of Britishinvolvement in the European exchange-rate mechanism (ERM).It is striking that at a time of such historic advancement in the European Community, solittle was said by any of the political parties during the election campaign about Britain’s futurewithin the EC and the corresponding concern for national sovereignty. Why did this happen?As a matter of conjecture, there are two possible explanations.First, throughout the campaign, poils consistently indicated a tight race, thus, it becamevery important that each political party highlight its distinctiveness in relation to the others sothat the narrow margin of undecided voters could be attracted by clear alternatives. Since allthree major political parties supported closer union of the European Community, each partysought to emphasize other issues in which there were clear policy differences. Hence, theLabour party emphasized more equitable taxation and constitutional reform, while theConservatives portrayed Labour as the party of high taxation, and as a party less trustworthy tobe in office at a time of economic recession.206 The Liberal Democrats made much of the factthat it was the only party to promise an increase in the standard rate of tax (by one penny) andthis, to fund extra spending on education.207 Secondly, the Telegraph poii conducted on theeve of the election campaign, revealing that only 39 percent of the population had decidedwhether or not to support the Maastricht agreements, suggests that at the time, to have205 The Telegraph, 12 March and 01 April, 1992; The Times, 16 March, 27 March and 07April, 1992.206‘The General Election of 1992’, loc.cit. at 4-5.207 Ibid. at 5.87campaigned on the EC issue would have been unpredictable and, therefore, potentially politicallydangerous.Ironically, Prime Minister Major faces more trouble from his own party than from theopposition Labour and Liberal Democratic parties over negotiations on European political andmonetary union. At present, a vigorous debate is being waged within the Conservative partyover the direction the United Kingdom ought to take with respect to closer alignment with theEC. The Conservatives are clearly divided. A serious rift has formed between a majority ofMPs who favour closer union within the European Community and a minority of MPs ferventlyopposed to such a political development, who believe, on the contrary, that the trend towardincreased European union should be reversed. The cleavage represents the single greatest threatto the continuity of John Major’s government.On May 21, 1992, the House of Commons met to deliver a key vote on the Bill to ratifythe Maastricht pact. The Maastricht legislation sailed through its second reading with a massivemajority of 336-to-92 due to Labour’s decision to abstain.208 The vote revealed 22 stalwartanti-European Conservative MPs. Recent events seem to suggest that John Major is facingincreasing opposition to the proposed treaty on closer economic and political union of the EC.By June 21, a further 70 MPs had signed a Commons motion asking the Government to makea fresh start and rethink its European position.209 One week later, 10 junior Ministers met inconclave to reinforce their opposition to anything except the minimum concessions toward208 San Francisco Chronicle, 22 May, 1992. In response to the outcome of the Danishreferendum, the British government on June 28, 1992 suspended parliamentary debate overMaastricht-related legislation, and has decided not to re-open debate on national ratification ofthe pact until at least the late autumn of 1992.209 Christian Science Monitor, 01 July, 1992.88European union.21° Furthermore, in a nationally broadcast television interview on July 1,Margaret Thatcher egged on her allies in Parliament by suggesting that Maastricht was a “treatythat had gone too far”.21’ The former Prime Minister made it plain that she intended tooppose all efforts to have the treaty ratified by the British Parliament.At present there are several identifiable groups among the 336 Tories at Westminster.The Bruges Group was formed after Thatcher’s now famous anti-Community speech ofSeptember 1988, in the Belgian city of Bruges.212 It has more academics among its paid-upmembers than MPs, however, the group’s sympathizers at Westminster, known as the ‘Friendsof Bruges’, were recently able to enlist the backing of some two dozen Tory MPs for aresolution urging Prime Minister Major to keep Britain out of European economic and monetaryunion.213 At Parliament, the Tory rebels in the Commons are being encouraged by MargaretThatcher and her former Cabinet colleagues, Nicolas Ridley and Norman Tebbitt214,all newlyarrived in the House of Lords. Although numerically they are small, this bloc of Tories poses210 Ibid.211 The Times, 02 July, 1992.212 In that speech, Thatcher reiterated her strong support for the economic liberalizationplanned by the EC for 1992, but at the same time stressed her opposition to centralization ofEuropean political and social decision-making. Thatcher warned against the creation of aEuropean superstate and a central bank, as well as linking the British Pound to the Europeanexchange rate mechanism (ERM). She argued that such events would be “catastrophic andhorrific” for Britain because it would result in economic domination by Germany, the weakeningof the sovereignty of the British Parliament and a loss of control over national economic destiny.See, (1988) 2497 Facts on File 709 at 719 and P. Riddell, loc.cit.. Thatcher continues to assailpending moves toward a more closely federated European Community along these lines, see forexample, The Times, 15 May, 1992; 19 June, 1992; and the Christian Science Monitor, 01 July,1992.213 The Times, 21 June, 1992.214 The Observer, 07 June, 1992.89the strongest threat to the stability of the Conservative party. The group is well-organized,prominent and vociferous in its anti-European stance. A recently leaked draft of the bloc’sagenda shows many motions critical of the government’s policies on Europe.215 Moreover,in the draft it was stated that a significant number of Tories within the group intend to mountan offensive against John Major’s European initiative at the Conservative party’s upcomingconference in Brighton in October 1992, by calling for Britain to leave the ERM. They havealso adopted a recalcitrant stance in support of Margaret Thatcher’s demands for a Britishnational referendum on closer European union.The European Reform Group is a collection of some 60 Conservative MPs, whose primeconcern is to preserve the sovereignty of the Westminster Parliament against foreignencroachment.216 They are not as hostile to Brussels and all its works as is the Bruges Group.They would probably support a European monetary union treaty. Likewise, they might back apolitical union treaty, provided it did not give any significant new powers to the EuropeanParliament and Commission. Pro-EC Conservatives are far less organized than either of theabove groups. Perhaps, complacently, they feel that the tide of events in the Communitycontinues to run in their favour.217 Larger than any of these groups are uncommitted ToryMPs, who want party unity above all. They are most likely to follow John Major’s lead -- ifhe gives a proper lead.215 The Times, 17 August, 1992.216 The Parliamentarian 73, no. 1 (January, 1992) at 127.217 This may change suddenly depending upon the outcome of the upcoming nationalreferendum in France (Sept. 20, 1992) on European union.90The Sovereignty Issue in British Politics TodayAt present, the tide continues to run for the idea of European unification. This isprobably the result of dramatic geopolitical and geocultural changes which remind us that thefuture of ‘Europe’, as indeed of every other nation-state today, will be largely determined bywider regional, or global currents and trends. But this same current may serve simultaneouslyas a model and a warning; what may flow so suddenly and vigorously in one direction mayequally swiftly change course, and in so doing reverse the climate that seemed so conducive tothe process of European unification. Hence the importance of basing any form of Europeanunion on firm and deep cultural and social foundations that are, to some extent, independent ofeconomic and political fluctuations.Thus, the issue of European integration is inextricably linked to its relationship withnations, national identity and national sovereignty.218 National identities are forged out ofshared experiences, memories and myths, in relation to those of other collective identities. Theyare in fact often forged through opposition to the identities of others, as the history of pairedconflict so often demonstrates. In this respect, national identifications possess distinctadvantages over the idea of a unified European identity. They are accessible, well established,long popularized and still widely believed in. In each of these respects, a European super-stateis deficient both in idea and form. Above all, it lacks a ‘pre-history’ which can provide it withemotional sustenance and historical depth. Consequently, rooted structures like the nation-state,and hallowed values like national sovereignty remain tenacious in their attachment to Western218 See, E. Geliner, Nations and Nationalism, (Oxford: Blackwell, 1983); A.D. Smith,National Identity, (London: Penguin, 1991); H. Kohn, The Idea of Nationalism, 2nd ed., (NewYork: Macmillan, 1967); A.D. Smith, The Ethnic Origins of Nations, (Oxford: Blackwell,1986); and L. Dobb and F.W. Hinsley locs.cit., supra, note 140.91political thought.219This is evident in the governing Conservative party of John Major, where the divisionover Europe is fuelled by competing visions of what Britain’s likely future in a more closelyunified Europe would be. The primary fear of anti-European Tories is that as European unionincreases, what is likely to follow is the progressive derogation of the right of self-governmentto the stage at which it may become neither theoretically nor practically within the power ofParliament to reverse the process of change. The roots of Britain’s imperial legacy still rundeep, and only serve to exacerbate the anxious concerns of those who would see closer Europeanintegration as a recipe for the devolution of power from Parliament to a centralized Euro-bureaucracy in which Britain’s national interest would no longer be paramount.As we have seen, both the Labour and Liberal Democratic caucuses at Westminster haveindicated their commitment toward furthering economic and political union in the Community.Despite the division over Europe in the Conservative party, a solid majority of Tory MPs remainsupportive of closer European union as well. Pro-European politicians on both sides of theHouse of Commons argue that European monetary union is not a reckless scheme devised byEurocrats in Brussels but, rather, a set of practical proposals with firm roots in the increasingtrend toward integration of the European economies as a result of accelerating globalization.Proponents of EMU base such arguments on the acknowledged success of the ERM in providingexchange-rate stability and effective monetary co-ordination in the 1980s. Moreover, they point219 The Western model of the nation has tended to emphasize the centrality of a nationalterritory or homeland, a common system of laws and institutions, the legal equality of citizensin a political community, and the importance of a mass, civic, culture binding the citizenstogether. See, L. Tivey, ed., The Nation-State, (Oxford: Martin Robertson, 1980); and C.Tilley, ed. The Formation of National States in Western Europe, (Princeton: PrincetonUniversity Press, 1975).92out that the advantages of a single currency for business are: that it would end transaction costs,eliminate exchange rate instability and provide a stable low-inflation environment for growth,as well as to enable the planning of trade and investment objectives without the worry ofcurrency fluctuations.Pro-EMU MPs maintain that Britain is already in a Deutschmark zone caused by thepolicies of the German Bundesbank220,but without the institutions which would allow Britainto influence policy. A seat on the Eurofed as well as an element of accountability through anEconomic and Finance Committee of the Council of Ministers, they argue, would give Britainan effective say.22’ The choice, says Labour MP Giles Radice, “is between a single currencyor a dominant currency”.222 Furthermore, the pro-European politicians suggest that the onlyother option for Britain -- opting out -- would require considerably higher interest rates than theEuro-rate to keep the pound stable, to the detriment of British investment and growth.223 Atthe heart of the pro-EMU message at Westminster is a plea for rational interpretation of presenteconomic trends. If Maastricht is ratified, exclaim the MPs, momentum for a single currencywill gather speed and create an economic turning point out of which Britain cannot afford to beleft.Many of the pro-European supporters in Parliament, including such prominent Tories asMichael Heseltine and Sir Patrick Mayhew, simultaneously testify that if a united Europe is to220 See, infra, at 96, and note 232.221 The Observer, 08 December, 1991.222 Ibid.223 The Guardian, 05 May, 1992.93flourish economically then it must also appear focused in its vision of foreign policy.224 Theycontend that this is to help reduce the likelihood of competing European and national identitiescoming into conflict, as was the case when EC member-states, responsive to national publicopinion, were in disarray over foreign policy of the Gulf war and then over ethnic unrest in theformer Yugoslav state. Thus, it is argued, maximum benefit of membership in the Communitywill only accrue to member states if there is a concerted European policy based on a singlepresumed European interest and self-image.Why is it, then, that Tory Euro-sceptics in the Conservative caucus are filled withtrepidation over greater monetary and political union between Britain and the Europeancontinent? The answer lies in the exigent cries of the Euro-sceptics themselves, which arelargely fuelled by a perceived threat to the sovereignty, identity and democracy of the Britishnation, and ultimately, to the authority of the British Parliament to act in the greater interest ofthe British people. Professor Anthony Smith suggests that national identifications are“fundamentally multi-dimensional”, and that though they are composed of analytically separablecomponents - ethnic, legal, territorial, economic and political - “they are united by nationalideology into a potent vision of human identity and community” •225 The ideology of nationalsovereignty which emerged in Western Europe was premised on the belief of a world ofexclusive nations, each possessing a uniquely developed identity. The basic goals of nationalistseverywhere were identical: they sought to unify the nation, to endow it with a distinctiveindividuality and to make it free and autonomous. The nation-state, thus, became the supremeobject of loyalty and the sole criterion of government. There was no legitimate exercise of224 See, M. Heseltine, loc.cit., and The Telegraph, 20 May, 1992.225 A.D. Smith, National Identities, at 36-37.94political power which did not emanate expressly from the nation, for this was the only sourceof political power and individual freedom.The concept of nation-state remains deeply rooted in the British national identity todayand is reinforced by grand images of the ‘Island race’ -- ‘Little England’ -- that built an imperialdynasty and who twice stood alone in the defense of her freedom in two World Wars.226Euro-sceptics in the Conservative Party have clearly embraced such a vision in the face of whatthey believe to be Maastricht’s blueprint for a European federation.227 Margaret Thatcherpassionately reflected this prevailing attitude among dissident Tories when she said:Deep down we are an island people, still, and I think we shall always be that.I do not wish to see Britain’s power taken away. Our Parliament is central to thelife of our nation. It was the chimes of Big Ben that rang out across Europeduring the [Second World] War. Nationhood remains the focus of loyalty andsovereignty in the modern world. Europe cannot be built by ignoring orsuppressing this sense of nationhood by trying to turn us into regions rather thannations. The way forward lies in willing co-operation between independentsovereign states •228Broadly speaking, anti-European Tories at Westminster have three misgivings toward theprospect of closer economic and political union with Europe. They believe that Maastricht willset off a supranational domino effect in which Britain ends up with little control over economicpolicy, social and foreign policy, and a parliament incapacitated by a centralized andundemocratic pan-European bureaucracy. I will deal with each of these seriatim.Economic policy constitutes one of the most important actions of the modern state. In226 See, for example, The Observer, 17 November and 24 November, 1991; San FranciscoChronicle, 18 December, 1991; Vancouver Sun, 22 August, 1991; and P. Riddell, loc.cit.227 See, for instance, W. Cash, Against a Federal Europe, (London: Duckworth, 1992), apamphlet summarizing the Bruges Group’s opposition to closer union of the EC.228 The Observer, 29 November, 1991.95today’s global markets it is more obvious than ever that a vibrant working economy is the enginewhich powers the survival of the nation-state. In the absence of a healthy economy, a nation’spopulation falls prey to discomfort, then unrest, and finally, anarchy. As a nation’s economygrows in size and success so also does its potential to exert influence on lesser economiesperipheral to it. Hence, as history has shown repeatedly, national economies can become amedium through which a nation projects its values and identity to the world around it. It is notsurprising, then, that for Britain, any prospect of losing control over vital instruments of nationaleconomic policy, such as a central bank, exchange rates and currency itself, stirs up a deep fearof losing a long-standing symbol of national autonomy -- the British pound. Here theexperiences of early industrialization and empire can aid our analysis.Britain was the world’s first industrializer, and later, she became the manager of a vastoverseas empire. Both experiences shaped the institutional setting of British markets, sofundamentally in some cases that their legacy has lasted right into the post-war period. Oneaspect of this legacy has been the persistent, and not always rational, defense of the pound byvirtually every successive post-WWII government in Britain. As Peter Hall suggests in hisseminal book, Governing the Economy:this approach to policy was rooted in the experience of empire. After WWIIwith Britain’s financial legacy came a diplomatic one. Most of Britain’s overseasbalances were held in the official reserves of nations who once belonged to theold sterling area. Any fall in the British exchange-rate would reduce the valueof the reserves and have serious diplomatic repercussions. As a result, Britishpolicy makers were inclined to see devaluation as form of default on Britain’sinternational obligations. This legacy remains in Whitehall today.229The British, suggests Hall, continue to cling to lofty perceptions of their currency. This229 P. Hall, Governing the Economy: The Politics of State Intervention in Britain and France,(New York: Oxford University Press, 1986) at 58.96stands as a stark testament to the continued importance attached to national currency as a symbolof national sovereignty and the projection of influence.Anti-European Tories fervently believe that a single European currency would result ina unequivocal transfer of control over economic policy from Parliament to a European centralbank, and hence, Britain’s loss of control over her own destiny.230 Their consistent scepticismabout rushing into monetary union is based on an acute awareness that when countries agree toa common currency, they in effect surrender some of their most basic sovereign rights, poolingtheir sovereignty in monetary affairs. In justifying their fervour, the dissident MPs point to thestranglehold that the German Bundesbank23’now holds over Britain’s economic fortunes. Theeconomic crisis232 ensuing in Britain as a result of German economic policy is being trumpetedby anti-European forces at Westminster as a timely example of the disastrous consequences thatwould accompany British acceptance of a single European currency.233230 See, W. Cash, loc.cit. at 12.231 The German Bundesbank is no ordinary central bank. It was established by law as anentirely independent branch of government, beyond the reach of grasping politicians with onesacred task - that of upholding the nation’s currency. It has never betrayed its trust. TheGerman people know this. Because it has the unfaltering support of the German people, theBundesbank does what it believes to be right, economically, with hardly a glance at Bonn,London, or Paris.232 Today’s Bundesbank crusade is against inflation, in defence of the German currency. Theeconomic havoc created by unification is still reverberating through the nation. Bonn, as aresult, has been printing money at more than double the target rate of the Bundesbank. In orderto stamp this out, as the Bundesbank would see it, interest rates have been kept inordinatelyhigh. Germany’s neighbours in the ERM are paying for it. Nowhere is this more apparent thanin Britain where the economy is turning from recession into slump. Interest rates need to comedown two or three points (from 10 to seven percent) to properly kickstart a totally dormantindustrial sector. But the pound is consistently the weakest of all European currencies in theEMR; and until rates fall, along with the value of the mark, senior British officials can donothing.233 The Times, 08 July, 1992; Vancouver Sun, 25 July, 1992.97The threat to sterling has been debated in Britain for months and months. As we sawin Chapter 2, economic necessity gave birth to the European Economic Community in 1957.Even Britain, which at first was frozen out of the fledging Common Market by France and laterbecame fastidious about whether the group was really good enough for it to join, has no seriousquestions any more about the economic benefits of membership.234 Prime Minister John Majordoes not really have any doubts about the benefits of a single currency235, but to satisfy thedoubters at home who have gathered under the banner of Margaret Thatcher, and in an effortto maintain party unity, he convinced his 11 EC partners to agree that Britain could remainoutside the monetary union agreement, by an opt-out provision236,until the British Parliamentmade the final decision whether to join.The effect that closer European union would have on national social policy is anothermajor issue of concern among British politicians today. The Conservative Bruges Group anda significant number of MPs in the Tory European Reform bloc remain firmly against attachingBritain to any type of European social charter. At the root of their opposition to such adevelopment lies a deeply held belief that matters so directly related to the lives of Britishcitizens must remain the sole responsibility of the British Parliament. Laws concerning socialpolicy, argues Sir James Spicer, a leading MP in the European Reform Group, are “intimatelyconnected to the fabric of our nation and our democratic tradition. Any act of submission to anenforced Europe-wide social policy would be tantamount to surrendering Parliament’s234 New York Times, 15 December, 1991.235 H.C. Deb., vol. 204, 11 February, 1992, col. 321.236 Supra, note 189.98responsibilities for the welfare of the British people” •237Euro-sceptics in the Conservative caucus vehemently opposed the protocol on socialpolicy formulated at Maastricht. The protocol agrees to use EC institutions to ‘support andcomplement’ member governments in the areas of workers’ health and safety, sexual equalityin the work place and providing information and consultation for workers. The protocol wouldallow majority voting among EC member states to decide most issues concerning social policy.Margaret Thatcher has stated unequivocally that “matters of such concern have no place but inthe British Parliament”.238 Furthermore, said Thatcher:The Maastricht protocol on social policy proposes an enormous and unacceptabletransfer of responsibility from Parliament, which is clearly accountable to theBritish people, to the European Community and its institutions which are not.If John Major’s successful demands at Maastricht for a British exclusion from the socialprotocol is any indication, it appears that pro- and anti-European forces in the Conservativecaucus are united in their opposition to European encroachment on British policy. John Majorand his pro-Europe supporters take a more economic-oriented stance against a European socialcharter, however, than do the MPs in the Bruges and European Reform Groups, who prefer toemphasize the threat that such a charter would pose to the sovereignty of the British Parliament.The Prime Minister has argued that such powers as provided for in the Maastricht protocol onsocial policy could reimpose labour regulations that Britain had removed under former Prime237 Ironically a MORI opinion poii revealed that while only 17 percent of Britons favour thetransfer of more power to the European Parliament in Strasbourg, France, there is a high degreeof support -- 57 percent -- to give the EC Commission greater control over social andenvironmental policy. Robert Worcester, chairman of the MORI polling firm, suggests that theBritish public is saying “we don’t necessarily trust Westminster to get it right on social andenvironmental issues”. The Times, 27 February, 1992. The exact areas and extent of such atransfer remain, however, largely undetermined.238 The Observer, 15 December, 1991.99Minister Thatcher.239 In its opposition to the protocol, the government of John Major seemsto be taking a position that is exactly the reverse of that held by many Canadians about closereconomic integration with the United States. They feared the loss of social benefits in a freemarket. The British government fears submission to social benefits standardized for all themembers of the common market. Thus it opposes a maximum 48-hour work week and otherelementary labour and health guarantees. This would appear to be the legacy of a decade ofhard-nosed Thatcherism that spurned soft-hearted policies in a return to Victorian industrialism.A concern for the future role of British foreign policy marks another reason that anti-European politicians in Britain have objected to European political union. This concern,however, appears to be less motivated with preserving the sovereignty of Parliament than it doeswith preserving the traditional position of Britain’s relationship with the United States and withinNATO. While the issue concerning British foreign policy is often over-shadowed by the debateover EMU and a single currency, the Bruges Group has continued to draw attention to itsopposition to a supranational European foreign policy. Recently, long-standing anti-EuropeanMPs Sir Peter Emery and Sir Trevor Skeet sponsored a parliamentary petition supported by 52fellow MPs calling for Prime Minister Major to “ensure that future European negotiationspreserve the integrity of Britain’s position as a partner in NATO and the country’s uniquerelationship with the United States of America” •240Euro-sceptics in the Bruges Group believe that the United States has a special stake inthe character of Europe. America’s closest allies are members of the European Community.These special relationships will disappear, they warn, in a common European foreign policy and239 The Sunday Times, 15 December, 1991.240 The Parliamentarian 73, no. 2 (April, 1992) at 130. The Telegraph, 27 March, 1992.100in a defense policy based on the Western European Union. Had such common policies existedbefore the Persian Gulf crisis, the MPs are quick to point out, neither Britain nor France wouldhave been in a position to offer prompt and substantial commitments of support to the UnitedStates.241Although in many ways it is the least addressed of the issues surrounding Europeaneconomic and political union, the prospect of being governed by European central institutionsthat remain largely unaccountable and whose policies reflect only bureaucrats, remains a centralconcern of anti-Europeans in the Conservative Party. Indeed, it is important to all thoseconcerned about a future in the European Community. Britain possesses a democratic traditiongenuinely hostile to bureaucratic centralism242, and because Britain has the mother of allparliaments, Tory Euro-sceptics argue that Britain potentially has the most to lose in Europeanunion.243 Anti-European MPs are bound to equate democracy with British parliamentarysovereignty, but a citizen may wonder whether democracy might also mean more accountableEuropean institutions: above all, an elected Parliament with real power to control and reviewthe decision of the Council and Commission. The so-called ‘democratic deficit’ within theCommunity structure, however, is very real. Consequently, Tory fears of ‘Europe’s’ inabilityto govern itself are not altogether unfounded.Since 1986, the European Parliament has become a somewhat more influential actor inthe EC policy process. In an attempt to redress the democratic deficit within the Community,241 w Cash, loc.cit. at 14.242 See, in particular, K. Dyson, The State Tradition in Western Europe, (London: MartinRobertson, 1982).243 w• Cash, loc.cit. at 20.101the Single European Act introduced a new ‘cooperation procedure’ which grants the EuropeanParliament the right to a second reading of all Community legislation relating to theestablishment and functioning of the internal market, social and economic cohesion and certainaspects of EC social and regional policies. This provides MEPs with a further opportunity topropose amendments to the ‘common position’ adopted by the Council of Ministers which canthen be overridden by the Council of Ministers only by a unanimous vote.The cooperation procedure has undoubtedly provided MEPs with additional leverage overthe details of much Community legislation. Since the introduction of the Single European Actin 1989, the Commission has accepted 1,052 of the Parliament’s 1,724 amendments to singlemarket laws, and of those the Council has agreed to 719.214 The Parliament has thus becomea useful means of achieving amendments to EC legislation. Nevertheless, its legislative powersremain-- for the moment at least -- limited. It has no right to initiate legislation, no legislativepowers with regard to policies outside the sectors listed above, and no powers to overridedecisions taken by the Council of Ministers.Hence, the Conservative Euro-sceptics, wary of the absence of democratic controls in theEC’s central institutions, continue to uphold Margaret Thatcher’s vision of a “Europe of diverse,sovereign democratic states, prosperous because of the freedom of their societies and economiesbusily trading with one another, and looking outward” •245 Like Thatcher, they reject a Europein which each people has lost control of its affairs to the artificial bureaucracy in Brussels solelyreflecting the vision of unrepresentative bureaucrats.244 The Observer, 26 April, 1992.245 San Francisco Chronicle, 20 March, 1991.102With respect to his policy toward Europe, there is little doubt that John Major has beenforced to walk a political tightrope between those who see European union as the only way forthe European Community to succeed, given the economic and political trends of the world today,and those that believe Britain must never forget the history from whence it has sprung. Thedivision in the Conservative caucus has, if anything, provided a positive medium for debate andhas enabled the British to carefully chart their course in a European future.John Major has had to craft his vision of British participation in Europe with politicalastuteness. Not only has the Prime Minister been required to deal with a divisive caucus whichhas left his government atop a powder keg of conflicting dissatisfactions, but, he has also beenforced to juggle the legacy of his predecessor, Margaret Thatcher. Major has carefullydistinguished his positions from Thatcher on a variety of issues. Where she emphasized self-reliance, he has emphasized social solidarity. Where she emphasized differences among thenations of Europe, he has emphasized a “safe and prosperous” whole. Where she emphasizedthe preservation of national sovereignty and the role of Parliament in the life of the nation, hehas emphasized building Europe.The differences between Thatcher and Major may be less marked than they sound. Theymay also be more rhetorical than substantive, but, rhetoric is, after all, the medium by whichpolitical leaders communicate their purposes, and rhetoric was the medium that John Majorchose to differentiate himself from his predecessor.There are certainly clues to Major’s similarity with Thatcher’s European outlook. It was103Major who led the fight to have the principle of ‘subsidiarity’246 inserted into the Maastrichtpact, and it is he who continues to lead the call for enlargement of the EC to include EasternEuropean states and parts of Northern Europe.247 One cannot help but suspect that his desireto push for the expansion of the EC is a way of rendering a supranational ‘federal’ Europe lesslikely.Ironically, only a quarter of a century ago Britain was knocking at the door of theEuropean Economic Community and it was France that was blocking British membership.Today, France, with Germany, are trying to convince Britain to sign up fully. For Britain thereis a gamble either way. If it holds out by clutching as much sovereignty as possible, Britain canpreserve its independence, its way of life, its position of Parliament and be as Thatcherist orsocialist as it chooses. But that way could bring an eclipse of Britain as an economic andfinancial power, and political isolation.If Britain whole heartedly joins the new union, it will lose a great deal of its sovereigndiscretion, but it stands a better chance of economic prosperity and can participate in the grandpolitical alliance, ensuring the preservation of whatever national ‘quirks’ it can hang on to.Slowing down the European express train just a little, however, as Britain has been trying246 In the wake of Danish voters’ rejection of the Maastricht treaty, Prime Minister Majorput forward the possibility of adding a special protocol to the treaty that would underline theneed to avoid giving too much power to the European Commission in Brussels and devolve itinstead to national parliaments. On July 1, 1992 EC members officially recognized the principleof ‘subsidiarity’ in the Maastricht agreements. The principle means that EC bureaucrats inBrussels should decide only those issues that they absolutely must. Everything else should beleft for EC members to decide for themselves.247 See especially, Christian Science Monitor, 25 November and 24 December, 1991, andChristian Science Monitor, 10 June, 1992.104to do, may not be so harmful. It may force the other 11 to spend more time polishing the termsof political union which, in the long run, is going to have to take account of the aspirations ofa great many other countries -- at least another dozen, including the Western associates of thefree trade area, as well as Poland, Hungary and perhaps the Ukraine.105ConclusionAs readers may now be aware, discussion of legislative sovereignty is liable to becomeenmeshed in legal technicalities, and to give too little attention to the political significance ofenabling the courts to review Acts of Parliament.248 A strong defence on political grounds canbe made of the existing position in which legislation (non-EC related) by Parliament is immunefrom direct review or scrutiny by judges.249 The status quo is favoured by the two parties thathave governed Britain in succession since 1945, since the ability to exercise legislative authorityis one of the prized prerogatives of British government. Other parties and groups may be moreattracted to the possibility of enabling the judiciary to apply limits to the legislature in theinterests of individual and minority rights.The present relationship between the courts and the legislature is founded upon theattitude which judges have taken to legislation over many years; it has also accorded with thewishes of successive majorities in the House of Commons. If studied closely, the exact248 There is a large and rapidly expanding body of literature on the problems of judicialreview in the constitutional sphere. For a sampling of this literature, which is predominantlyAmerican and Canadian, see, A.M. Bickel, The Least Dangerous Branch: The Supreme Courtat the Bar of Politics, 2nd ed., (New Haven: Yale University Press, 1986); J.H. Ely, Democracyand Distrust: A Theory of Judicial Review, (Cambridge: Harvard University Press, 1980); P.Bobbitt, Constitutional Fate: Theory of the Constitution, (London: Oxford University Press,1982); M.J. Perry, The Constitution, the Courts and Human Rights: An Inquiry into theLegitimacy of Constitutional Policymaking by the Judiciary, (New Haven: Yale UniversityPress, 1982); R.M. Dworkin, A Matter of Principle, (Cambridge: Harvard University Press,1985),; P.J. Monahan, ‘Judicial Review and Democracy’, (1987) U.B.C. Law Review, at 87.;M. Mandel, The Charter of Rights and the Legalization of Politics in Canada, (Toronto: Walland Thompson, 1989).249 J.A. Griffith, ‘The Political Constitution’, (1979) 42 M.L.R. 1.106boundaries of legislative sovereignty are, however, difficult to determine. For example, so longas Parliament does not enact that all blue-eyed babies should be strangled at birth, we shall notknow whether Parliament is restrained by purely political or moral reasons from doing so, orwhether Parliament could be debarred from doing so by a gloss upon fundamental legal doctrinewhich the courts have never had occasion to develop. More relevantly, so long as Parliamentdoes not seek intentionally to override a rule of Community law, we shall not know whether thisis to be explained by the lack of political desire to legislate or by considerations of expediency,or whether Community law now imposes limits upon Parliament that are enforceable by Britishjudges.As regards Community law and the sovereignty of the British Parliament, essentially twomain interlocking issues are involved: (1) the primacy of Community law over national law,including legislation, and, (2) the consequences of this on the doctrine of parliamentarysupremacy, which, as commonly understood, is said to involve the unlimited and ultimatelyexclusive legislative capacity of Parliament, a capacity which is inalienable. Thus, it is said thatParliament can never by any Act bind its successors, and so, in particular, is not bound for thefuture by the European Communities Act, which does give effect to the primacy of Communitylaw. In effect, it is argued on the traditionalist side that, because of the doctrine of thesovereignty of Parliament, United Kingdom legislation can always override Communitylegislation and that where there is a conflict between a Community Regulation and a later BritishAct of Parliament, British courts must always obey the latter. That this is no longer necessarilythe case has been made abundantly clear in the results of the Factortame litigation.Long before Factortame, at the passing of the European Communities Act in 1972,107successive Lord Chancellors denied either that Parliament would surrender its sovereignty or thatthe Act would be irreversible. Lord Gardiner pointed out that the United Kingdom had acceptedrestraints on its legislative power to take account of obligations arising out of such treaties asthe United Nations Charter, the European Convention on Human Rights, NATO and GATT.25°Lord Hailsham further pointed out that there were “stacks” of treaties designed to last for anindefinite period, some designed to last forever, and most peace treaties fall under one of theseheads.251 Lord Gardiner also said: “Under the British constitutional doctrine of parliamentarysovereignty no Parliament can preclude its successors from changing the law.... There is intheory no constitutional means available to us to make it certain that no future Parliament wouldenact legislation in conflict with Community law”; but he added that repeal of the 1972 Actwould be a breach of international obligations, unless it was justified by exceptionalcircumstances and had the approval of the other member states.252 Lord Justice Scarman (ashe was then) has written: “The European Communities Act preserves the de jure sovereigntyof Parliament, Community law has the force of law because Parliament says so.... TheEuropean Communities Act cannot be read as limiting the sovereignty of Parliament. No Britishcourt could, I suggest go so far as to hold that Parliament today had limited the freedom ofaction of Parliament tomorrow.”253 Moreover, 0. Hood Phillips has suggested that: “nothingin the 1972 Act even pretends to affect the fundamental principle of the supremacy of the United250 H.L. Deb., vol. 322, (1971) cols. 1202-1204.251 jçj., at cols. 195-208.252 c at cols. 1202-1204.253 Lord Scarman, ‘The Law of Establishment in the European Economic Community’,(1973) 24 N.I.L.Q. 61 at 70.108Kingdom Parliament.... So far as United Kingdom courts are concerned, constitutional law --notably the legislative supremacy of Parliament - is supreme, and Community law can takeeffect in this country only by force of Act of Parliament.”254That an Act of Parliament remains de jure, the ultimate constitutional authority in theUnited Kingdom today is not in doubt. What British membership of the European Communitycannot ignore, however, is the growing de facto supremacy of Community law.255 Theorthodox doctrine of the sovereign Parliament as it stands today is not an immutable part of theBritish constitution. It is important to remember that the law does not stand still. As Professorde Smith admits, in time the facts of life have their impact on legal theory.256So, the ultimate question remains: whether express repeal by Parliament of a provisionof EC law would be effective. If Parliament were to pass a Bill deemed vital to nationalinterest, which clearly violated provisions of Community law, British judges would undoubtedlyfeel constrained to obey the Parliamentary mandate.257 In doing so, however, they woulddirectly violate a basic tenant of Community law -- that Community law is supreme -- and thusprovoke a European constitutional crisis. If the United Kingdom wished to remain a memberof the Community, it would probably have to back down. The only alternative would be toleave the Community entirely. Therefore, in spite of the thrust of British constitutional theory,254 O.H. Phillips, loc.cit. at 81.255 By 1995, according to a research unit of the Economist 80 per cent of all new domesticlegislation in the member states will have emanated from Brussels. Andrew Geddes, ‘TheIncoming Tide: The Impact of EEC Law’, (1991) 141 N.L.J. 1330. at 1330.256 S.A. de Smith, ‘The Constitution and the Common Market: A Tentative Appraisal’,(1971) 34 M.L.R. 597 at 613.257 See, Macarthy’s Ltd. v. Smith, loc.cit.109the practical possibility of express repeal by Parliament of a specific provision of Communitylaw no longer exists, nor does the possibility of repealing a European Court of Justiceinterpretation of a Community law provision.Parliament can still repeal the European Communities Act in its entirety and withdrawthe United Kingdom from the European Community. It has been argued that even this optionis not legal because no right of withdrawal is recognized by the EEC Treaty and a Frenchproposal to include such a right was rejected.258 Moreover, article 240 of the Treaty statesthat the Treaty is “concluded for an unlimited time period”. Thus, it could be argued underCosta v. ENEL259 that national legislation to withdraw would be overridden by Communitylaw. This argument is ultimately unconvincing, however, because member states retain theunquestioned practical ability to withdraw. Consequently, there is nothing to prevent a futureParliament from repealing the European Communities Act in its entirety. Such an action byParliament would indicate that the national political will to remain a member of the Communitywas lacking, and invariably, there is nothing which any mere rule of law can do in such asituation. Thus, the ultimate sanction remains an extra-legal one.26° It must be assumed thatas long as the United Kingdom is a member of the Communities she will honour the legal andconstitutional obligations of membership. It thus appears that the vigour of parliamentarysovereignty is becoming merely a synonym for national sovereignty.258 J.A. Hill, ‘The European Economic Community: The Right of Member StateWithdrawal’, Georgia Journal of International and Comparative Law, (1982) vol. 12 at 335.259 Supra, at 50.260 See, J.D.B. Mitchell, ‘The Sovereignty of Parliament and Common Law: The StumblingBlock that Isn’t There’, (1979) International Affairs 33.110Some two centuries after becoming established as orthodoxy, the doctrine ofparliamentary sovereignty is now facing its greatest crisis. Although its existence in itstraditional formulation had been previously challenged, the current political and legal situationcreated by Britain’s membership in the European Community poses the greatest threat to thedoctrine’s theoretical usefulness in explaining the British constitution, as it actually operatestoday.The present doctrine of parliamentary sovereignty in light of the European Communitymeans no more than that the United Kingdom retains a right of total withdrawal from theEuropean Community and that this right is vested in the Queen-in-Parliament as a result ofBritain’s constitutional history. The traditional notion of parliamentary sovereignty, whichencompassed far more than a simple equivalence of parliamentary and national sovereignty, isbeing overtaken by new political and legal facts.261261 The significance of this development was suggested by one English scholar’s observationthat “when the facts cannot be made to fit the law, then the law must be made to fit the facts”,K.W.B. Middleton, ‘New Thoughts on the Union Between England and Scotland’, (1954) 66Jur. Rev. 37 at 53.111Select BibliographyBooksArnold, G. Britain Since 1945. London: Blandford, 1989.Bagehot, W. The English Constitution. 2nd ed. London: Oxford University Press, 1961.Bailey, S.H., and M.J. Guan. The Modern English Legal System. London: Sweet andMaxwell, 1991.Bebr, G. Development of Judicial Control of the European Communities. The Hague: MartinusNijhoff Publishers, 1981.Boulton, C.J., ed. Erskine May’s Parliamentary Practice. 21st ed. London: Butterworths,1989.Brownlie, I. 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Washington, D.C.,1950.NewspapersChristian Science MonitorThe GuardianNew York TimesThe ObserverSan Francisco ChronicleSunday TimesThe TelegraphThe TimesVancouver Sun121Appendix AEuropean Communities Act 1972(1972 c 68)An Act to make provision in connection with the enlargement of theEuropean Communities to include the United Kingdom, together with(for certain purposes) the Channel Islands, the Isle of Man andGibraltar [17 October 1972]PART IGENERAL PRovJsIoNs1 Short title and interpretation(1) This Act may be cited as the European Communities Act 1972.(2) InthisAct.‘the Communities’ means the European Economic Community, the European Coal and Steel Community and theEuropean Atomic Energy Community;‘the Treaties’ or ‘the Community Treaties’ means, subject tosubsection (3) below, the pre-accession treaties, that is to say,those described in Part I of Schedule 1 to this Act, takenwith—(a) the treaty relating to the accession of the UnitedKingdom to the European Economic Community andto the European Atomic Energy Community, signedat Brussels on the 22nd January 1972; and(b) the decision, of the same date, of the Council of theEuropean Communities relating to the accession of theUnited Kingdom to the European Coal and SteelCommunity; and(c) the treaty relating to the accession of the HellenicRepublic to the European Economic Community andto the European Atomic Energy Community, signedat Athens on 28th May 1979; and(d) the decision, of 24th May 1979, of the Council relatingto the accession of the Hellenic Republic to theEuropean Coal and Steel Community;(e) the decisions, of 7th May 1985 and of 24th June 1988,of the Council on the Communities’ system of ownresources; and122European Communities Act 1972(f) the undertaking by the Representatives of theGovernments of the member States, as confirmed attheir meeting within the Council on 24th June1988 inLuxembourg, to make payments to finance theCommunities’ general budget for the financial year1988; and(s) the treaty relating to the accession of the Kingdom ofSpain and the Portuguese Republic to the EuropeanEconomic Community, signed at Lisbon and Madridon 12th June 1985; and(h) the decision, of 11th June 1985, of the Council relatingto the accession of the Kingdom of Spain and thePortuguese Republic to the European Coal and SteelCommunity; and(j) the following provisions of the Single European Actsigned at Luxembourg and The Hague on 17th and28th February 1986, namely Title II (amendment ofthe treaties establishing the Communities) and, so faras they relate to any of the Communities or any Community institution, the preamble and Titles I(common provisions) and IV (general and finalprovisions);and any other treaty entered into by any of the Communities,with or without any of the member States, or entered into, as atreaty ancillary to any of the Treaties, by the United Kingdom;and any expression defined in Schedule 1 to this Act has the meaningthere given to it.(3) If Her Majesty by Order in Council declares that a treatyspecified in the Order is to be regarded as one of the CommunityTreaties as herein defined, the Order shall be conclusive that it is to beso regarded; but a treaty entered into by the United Kingdom after the22nd January 1972, other than a pre-accession treaty to which theUnited Kingdom accedes on terms settled on or before that date, shallnot be so regarded unless it is so specified, nor be so specified unless adraft of the Order in Council has been approved by resolution of eachHouse of Parliament.(4) For purposes of subsections (2) and (3) above, ‘treaty’ includesany international agreement, and any protocol or annex to a treaty orinternational agreement.NOTESThe words omitted from sub-s (2) were repealed by the Interpretation Act 1978,s 25(1), Sch 3, paras (c) and (d) were inserted by the European Communities (Greek123Accession) Act 1979, s 1, paras (e) and (f) (which were originally inserted by theEuropean Communities (Finance) Act 1985, a 1) were substituted by the EuropeanCommunities (Finance) Act 1988, s 1, paras (g) and (h) were inserted by the EuropeanCommunities (Spanish and Portuguese Accession) Act 1985, a 1, substituted by theEuropean Communities (Finance) Act 1988, a 1, and para 0) was inserted by the European Communities (Amendment) Act 1986, a 1.2 General implementation of Treaties(1) All such rights, powers, liabilities, obligations and restrictionsfrom time to time created or arising by or under the Treaties, and allsuch remedies and procedures from time to time provided for by orunder the Treaties, as in accordance with the Treaties are withoutfurther enactment to be given legal effect or used in the UnitedKingdom shall be recognised and available in law, and be enforced,allowed and followed accordingly; and the expression ‘enforceableCommunity right’ and similar expressions shall be read as referring toone to which this subsection applies.(2) Subject to Schedule 2 to this Act, at any time after its passingHer Majesty may by Order in Council, and any designated Minister ordepartment may by regulations, make provision—(a) for the purpose of implementing any Community obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyedor to be enjoyed by the United Kingdom under or by virtueof the Treaties to be exercised; or(b) for the purpose ofdealing with matters arising out ofor relatedto any such obligation or rights or the coming into force, or theoperation from time to time, of subsection (1) above;and in the exercise of any statutory power or duty, including anypower to give directions or to legislate by means of orders, rules,regulations or other subordinate instrument, the person entrustedwith the power or duty may have regard to the objects of the Communities and to any such obligation or rights as aforesaid.In this subsection ‘designated Minister or department’ means suchMinister of the Crown or government department as may from time totime be designated by Order in Council in relation to any matter or forany purpose, but subject to such restrictions or conditions (if any) asmay be specified by the Order in Council.(3) There shall be charged on and issued out of the Consolidatedfund or, if so determined by the Treasury, the National Loans Fundthe amounts required to meet any Community obligation to makepayments to any of the Communities or member States, or anyCommunity obligation in respect of contributions to the capital orreserves of the European Investment Bank or in respect of loans to the124European Communities Act 1972Bank, or to redeem any notes or obligations issued or created inrespect of any such Community obligation; and, except as otherwiseprovided by or under any enactment,—(a) any other expenses incurred under or by virtue of theTreaties or this Act by any Minister of the Crown orgovernment department may be paid out of moneys provided by Parliament; and(b) any sums received under or by virtue of the Treaties or thisAct by any Minister of the Crown or government department, save for such sums as may be required fordisbursements permitted by any other enactment, shall bepaid into the Consolidated Fund or, if so determined by theTreasury, the National Loans Fund.(4) The provision that may be made under subsection (2) aboveincludes, subject to Schedule 2 to this Act, any such provision (or anysuch extent) as might be made by Act of Parliament, and anyenactment passed or to be passed, other than one contained in thisPart of this Act, shall be construed and have effect subject to theforegoing provisions of this section; but, except as may be provided byany Act passed after this Act, Schedule 2 shall have effect in connection with the powers conferred by this and the following sectionsof this Act to make Orders in Council and regulations.(5) . . . and the references in that subsection to a Minister of theCrown or government department and to a statutory power or dutyshall include a Minister or department of the Government ofNorthern Ireland and a power or duty arising under or by virtue of anAct of the Parliament of Northern Ireland.(6) A law passed by the legislature of any of the Channel Islands orof the Isle of Man, or a colonial law (within the meaning of theColonial Laws Validity Act 1865) passed or made for Gibraltar, ifexpressed to be passed or made in the implementation of the Treatiesand of the obligations of the United Kingdom thereunder, shall not bevoid or inoperative by reason of any inconsistency with or repugnancyto an Act of Parliament, passed or to be passed, that extends to theIsland of Gibraltar or any provision having the force and effect of anAct there (but not including this section), nor by reason of its havingsome operation outside the Island or Gibraltar; and any such Act orprovision that extends to the Island or Gibraltar shall be construedand have effect subject to the provisions of any such law.NOTESThe words omitted from sub-s (5) were repealed by the Northern Ireland Constitution Act 1973, s 41(1), Sch 6, Pt 1.1253 Decisions on, and proof of, Treaties and Communityinstruments, etc(1) For the purposes of all legal proceedings any question as to themeaning or effect ofany ofthe Treaties, or as to the validity, meaning oreffect of any Community instrument, shall be treated as a question oflaw (and, ifnot referred to the European Court, be for determination assuch in accordance with the principles laid down by and any relevantdecision of the European Court [or any court attached thereto]).(2) Judicial notice shall be taken of the Treaties, of the OfficialJournal of the Communities and of any decision of, or expression ofopinion by, the European Court [or any court attached thereto] on anysuch question as aforesaid; and the Official Journal shall be admissibleas evidence of any instrument or other act thereby communicated ofany of the Communities or of any Community institution.(3) Evidence of any instrument issued by a Community institution,including any judgment or order of the European Court [or any courtattached thereto], or of any document in the custody of a Communityinstitution, or any entry in or extract from such a document, may begiven in any legal proceedings by production ofa copy certified as a truecopy by an official of that institution; and any document purporting tobe such a copy shall be received in evidence without proofof the officialposition or handwriting of the person signing the certificate.(4) Evidence of any Community instrument may also be given inany legal proceedings—(a) by production of a copy purporting to be printed by theQueen’s Printer;(b) where the instrument is in the custody of a governmentdepartment (including a department of the Government ofNorthern Ireland), by production of a copy certified onbehalf of the department to be a true copy by an officer ofthe department generally or specially authorised so to do;and any document purporting to be such a copy as is mentioned inparagraph (b) above of an instrument in the custody of a departmentshall be received in evidence without proof of the official position orhandwriting of the person signing the certificate, or of his authority soto do, or of the document being in the custody of the department.(5) In any legal proceedings in Scotland evidence of any matter givenin a manner authorised by this section shall be sufficient evidence of it.NOTESThe words in square brackets in sub-ss (1)—(3) were substituted or inserted by theEuropean Communities (Amendment) Act 1986, s 2.126European Communities Act 1972PART IIAMENDMENT OF LAW* * * * *11 Community offences(1) A person who, in sworn evidence before the European Court[or any court attached thereto], makes any statement which he knowsto be false or does not believe to be true shall, whether he is a Britishsubject or not, be guilty of an offence and may be proceeded againstand punished—(a) in England and Wales as for an offence against section 1(1)of the Perjury Act 1911; or(b) in Scotland as for an offence against section 1 of the FalseOaths (Scotland) Act 1933; or(c) in Northern Ireland as for an offence against [Article 3(1) ofthe Perjury (Northern Ireland) Order 1979].Where a report is made as to any such offence under the authority ofthe European Court [or any court attached thereto], then a bill ofindictment for the offence may. . . in Northern Ireland, be preferredas in a case where a prosecution is ordered under . . . [Article 13 ofthe Perjury (Northern Ireland) Order 1979], but the report shall notbe given in evidence on a person’s trial for the offence.(2) Where a person (whether a British subject or not) owingeither—(a) to his duties as a member of any Euratom institution orcommittee, or as an officer or servant of Euratom; or(b) to his dealings in any capacity (official or unofficial) withany Euratom institution or installation or with any Euratomjoint enterprise;has occasion to acquire, or obtain cognisance of, any classifiedinformation, he shall be guilty of a misdemeanour if, knowing orhaving reason to believe that it is classified information, he communicates it to any unauthorised person or makes any public disclosureof it, whether in the United Kingdom or elsewhere and whetherbefore or after the termination of those duties or dealings; and for thispurpose ‘classified information’ means any facts, information,knowled, documents or objects that are subject to the security rulesof a member State or of any Euratom institution.This subsection shall be construed, and the Official Secrets Acts1911 to 1939 shall have effect, as if this subsection were contained in127the Official Secrets Act 1911, but so that in that Act sections 10 and11, except section 10(4), shall not apply.(3) This section shall not come into force until the entry date.NOTESThe words in the first and third pairs of square brackets in sub-s (1) were inserted bythe European Communities (Amendment) Act 1986, s 2(b), and the words in thesecond and fourth pairs of square brackets were substituted by the Perjury (NorthernIreland) Order 1979, SI 1979/1714, Art 19(1), Sch 1, para 24. The words omitted wererepealed by the Prosecution of Offences Act 1985, s 3 1(6), Sch 2.* * * * *SCHEDULE 2Section 2PROVISIONS AS TO SUBORDINATE LEGISLATION1.—(1) The powers conferred by section 2(2) of this Act to make provision for thepurposes mentioned in section 2(2)(a) and (b) shall not include power—(a) to make any provision imposing or increasing taxation; or(b) to make any provision taking effect from a date earlier than that of themaking of the instrument containing the provision; or(c) to confer any power to legislate by means of orders, rules, regulations orother subordinate instrument, other than rules of procedure for any court ortribunal; or(d) to create any new criminal offence punishable with imprisonment for morethan two years or punishable on summary conviction with imprisonment formore than three months or with a fine of more than [level 5 on the standardscale] (if not calculated on a daily basis) or with a fine of more than [1OO aday],(2) Sub-paragraph (1)(c) above shall not be taken to preclude the modification of apower to legislate conferred otherwise than under section 2(2), or the extension of anysuch power to purposes of the like nature as those for which it was conferred; and apower to give directions as to matters of administration is not to be regarded as a powerto legislate within the meaning of sub-paragraph (1)(c).2.—.-(1) Subject to paragraph 3 below, where a provision contained in any section ofthis Act confers power to make regulations (otherwise than by modification or extensionof an existing power), the power shall be exercisable by statutory instrument.(2) Any statutory instrument containing an Order in Council or regulations made inthe exercise of a power so conferred, if made without a draft having been approved byresolution of each House of Parliament, shall be subject to annulment in pursuance of aresolution of either House.3. Nothing in paragraph 2 above shall apply to any Order in Council made by theGovernor of Northern Ireland or to any regulations made by a Minister or departmentof the Government of Northern Ireland; but where a provision contained in any sectidnof this Act confers power to make such an Order in Council or regulations, then any128European Communizies Ac: 1972Order in Council or regulations made in the exercise of that power, if made without adraft having been approved by resolution of each House of the Parliament of NorthernIreland, shall be subject to negative resolution within the meaning of section 41(6) ofthe Interpretation Act (Northern Ireland) 1954 as if the Order or regulations were astatutory instrument within the meaning of that Act.[4.—(1) The power to make orders under section 5(1) or (2) of this Act shall beexercisable in accordance with the following provisions of this paragraph.(2) The power to make such orders shall be exercisable by statutory instrument andincludes power to amend or revoke any such order made in the exercise of that power.(3) Any statutory instrument containing any such order shall be subject to annulment in pursuance of a resolution of the House of Commons except in a case fallingwithin sub-paragraph (4) below.(4) Subject to sub-paragraph (6) below, where an order imposes or increases anycustoms duty, or restricts any relief from customs duty under the said section 5, thestatutory instrument containing the order shall be laid before the House of Commonsafter being made and, unless the order is approved by that House before the end of theperiod of 28 days beginning with the day on which it was made, it shall cease to haveeffect at the end of that period, but without prejudice to anything previously doneunder the order or to the making of a new order.In reckoning the said period of 28 days no account shall be taken of any time duringwhich Parliament is dissolved or prorogued or during which the House of Commons isadjourned for more than 4 days.(5) Where an order has the effect of altering the rate of duty on any goods in such away that the new rate is not directly comparable with the old, it shall not be treated forthe purposes of sub-paragraph (4) above as increasing the duty on those goods if itdeclares the opinion of the Treasury to be that, in the circumstances existing at the dateof the order, the alteration is not calculated to raise the general level of duty on thegoods.(6) Sub-paragraph (4) above does not apply in the case of an instrument containingan order which states that it does not impose or increase any customs duty or restrict anyrelief from customs duty otherwise than in pursuance of a Community obligation.5, As soon as may be after the end of each financial year the Secretary of State shalllay before each House of Parliament a report on the exercise during that year of thepowers conferred by section 5(1) and (2) of this Act with respect to the imposition ofcustoms duties and the allowance of exemptions and reliefs from duties so imposed(including the power to amend or revoke orders imposing customs duties or providingfor any exemption or relief from duties so imposed).]NOTESThe words in the first pair of square brackets in para 1(1 )(d) are substituted by virtueof the Criminal Justice Act 1982, ss 40, 46. The words in the second pair of squarebrackets in that sub-paragraph were substituted by the Criminal Law Act 1977,ss 32(3), 65(10).Paras 4, 5 were added by the Customs and Excise Duties (General Reliefs) Act 1979,s 19(1), Sch 2, para 5.* * * *


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