Constitutional Law and European Integration

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There are few cases that rival Factortame in being concurrently substantively clear and decisive, and perplexing as to its full impact. The scope of the change to the UK constitution that has been instigated by it and other European Court of Justice decisions has been conceptualised as ranging from a ‘legal evolution’ to ‘revolution’. Although some theories are more convincing than others, each faces its own weaknesses. However, notwithstanding the conclusion of this particular speculative debate, the processes of European integration has undoubtedly quickened the pace at which UK Parliament and courts as part of a globalised world have had to squarely confront these constitutional changes, especially the departure from Parliament’s stronghold over the constitution. A Diceyan view of the UK constitution is no longer compatible with the current relationship between UK and EU law. It was decided in Factortame and confirmed in Equal Opportunities Commission, that the implications of the European Communities Act 1972 s.2(4) is that EU law has supremacy in the case of clashes between EU and national laws. Within the orthodox view that Parliament is absolutely sovereign, inconsistencies between Acts of Parliament are to be dealt with by applying the doctrine of explicit or implied repeal to give effect to the later Act which is simply another illustration of how no Parliament can bind its successors. It would never have been open to national courts to declare provisions within primary statute incompatible with EC law either temporarily or permanently as it is today. However, so long as UK remains a part of the EU, EU law will prevail when inconsistencies arise and any derogation from this position will have to be done expressly and unequivocally. Therefore, even if the current position of Parliamentary sovereignty cannot clearly be defined, Factortame and EOC alone emphasise the unworkability of a Diceyan view of Parliamentary sovereignty in an European context. A radical but yet convincing argument that conceptualises the constitutional implications suggests that, EU law is able to place a substantive limit on Parliament’s law making authority on overlapping areas because being a member state has partially changed the rule of recognition of Parliamentary sovereignty. Although this necessitates presupposing Parliamentary sovereignty is a legal principle, not a purely political one, it seems justified because instead of accepting Parliament to be sovereign merely by its existence, it allows for a justification based on normative arguments. This is important considering that the UK is a modern democracy and intrinsically different to the state it was in when the doctrine of Parliamentary sovereignty was originally developed. Being a legal phenomenon, the scope of Parliamentary sovereignty evolves through the judgments of the court which provides a more balanced and legitimate decision than considering just a political aspect because the political realities are still considered but are weighted against other principles such as the rule of obedience to statutes. Furthermore, courts are gradually developing the idea that the authority of Parliament to make law is something that is subject to, and therefore controllable by constitutional law. For example, in the domestic case of Anisminic, the scope of Parliament’s authority to confer on public authorities powers which are not subject to judicial review was sharply limited. Thus, the effect of ECJ decisions on the constitution has been to develop it to a stage where Parliament is no longer sovereign at times when, and only when, inconsistencies between EU and national law occur within a field where both laws operate. On the other hand, Sir William Wade would argue that ‘constitutional revolution’ rather than a mere evolution has resulted. However, this argument is not only at odds with Lord Bridge’s judgement but lacks plausibility in itself. He explains that the courts have...
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