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Parliament: sovereignty; supremacy; legislative functions; procedures. - relationship of Parliament to international organisations e.g. European Union
European Union Law: The legislative bodies of the Union and comparisons with British institutions. The effect of European legislation on English law. Supremacy. The European Court of Justice. Examples of relevant case law.
| Regulations | Directives | Decisions |
|---|---|---|
| Binding as written | Binding as to result but "national authorities can choose form and method" - Article 189 of the Treaty of Rome | Binding |
| Directly applicable | Require legislation (usually a Statutory Instrument on negative resolution under the European Communities Act) | Applicable to the parties to proceedings |
| Legislative | Instructions as to legislation (with a deadline) | Judiciary |
| They are a derogation from parliamentary sovereignty in that parliamentary sovereignty is as much the right not to make laws as the right to make them. | They are an erosion of judicial power rather than parliamentary sovereignty | |
| They may require the repeal or amendment of existing Acts. | The failure of the state to enact directives can count against it; i.e. there is direct effect(since Marshall v. Southampton Health Authority) | |
| In the Tachograph Case 1979, regulations that were not being enforced (although law) had their enforcement ordered by the EU. | It was decided that the state (in Foster v. British Gas PLC 1990) was a state controlled body providing a public service | |
| Doughty v. Rolls Royce 1992 (Court of Appeal): Rolls-Royce is not a public body, since it did not provide a public service. | ||
| Van Colson & Kannann v. Land Nordrhein Westfalen 1984: legislation (particularly, but not only, legislation intended to implement directives) should be interpreted according to the relevant directives. | ||
| Duke v. Reliance Systems Ltd (House of Lords): Previous legislation cannot be interpreted according to subsequent directives. | ||
| Cf. Marleasing SA v. La Commercial SA 1990: National courts are required to interpret legislation according to subsequent or previous directives. | ||
| Pretore di Salo v. Persons Unknown 1987: the state cannot base criminal proceedings on unenacted directives. | ||
| Francovich et al. v. Italy 1991, the state must make good any loss from non-enactment of directives, providing there was a link between the non-enactment and the loss, and that the directive endowed specific rights on individuals. | ||
| Directives only have direct vertical effect, and cannot be relied on between individuals. |
Acts become law by a Bill being passed.
Bills must have a majority in favour in both Houses, except that there are several conventional and statutory constraints on the Lords' activities that do not exist for the Commons. For example, the Lords, by the Salisbury Convention, will not vote against a government's manifesto commitment, thereby recognising that its democratic legitimacy is limited. There is a further convention, which was breached over the legislation establishing the closed list system for the European Parliament stating that the Lords should not reject any piece of legislation more than three times.
A Bill may be introduced in either House, but Private Bills are conventionally introduced in the Lords to save the Commons' time. In addition, Money Bills are never introduced in the Lords.
The procedure involves either the promoter of the legislation presenting it at the Table of the House or (less usually) passing a motion for leave to introduce it.
There is then:
A first reading, in which the Clerk of the House will read the title of the Bill only. This 'reading' will last for just a few seconds.
A second reading, after a suitable interval for members to consider the merits of the Bill, in which there is a debate on the Bill's general principles. Details of the Bill will not be changed at this stage - the debate is on whether the idea of the Bill is a good one. Unless the Bill is unopposed, there will be a debate followed by a vote. The second reading is by far the most important of all readings.
The alternative procedure for some Public Bills, including all Private Members Bills, is for a minister to move for the Bill to be referred to a standing Second Reading Committee of about 50 members, who report to the House on whether the Bill should receive a second reading. This procedure will not be used if at least 20 members oppose it. The report of the Committee will be put to House without amendment or debate.
The next stage is the committee stage. This will be a Standing Committee, consisting of about 2 dozen members in normal party proportions, unless a member moves for the Bill to go to committee of the whole House, to a Select Committee (including examination of witnessess), or to a Special Standing Committee (combining Select and Standing Committee procedure).
Assuming the Bill has gone to Standing Committee, each clause wil be considered one by one, with amendments possible. Each clause must be voted for by the Committee in turn. However, time limits can be set (the main procedural devices are: the Kangaroo (by which only some amendments are debated), the Guillotine (which imposes time limits on debate for each clause), Closure (which places a time limit on total debate)). It should be noted that the Lords does not have Standing Committees, considering all Bills on the floor of the House.
Private Bills and Hybrid Bills have a different (Select) committee procedure, where any interested party may appear, and witnesses may be called. Furthermore, the members of the committee (except for Hybrid Bills) must have no personal interest. This rule of practice is designed to stop members legislating in their own interests where little publicity would be attracted. The Special Standing Committee procedure involves sitting as a Select Committee hearing evidence for four sessions, and then considering the Bill as normal.
The report stage follows, providing the committee amended the Bill, in which the committee presents its report, and the House may amend the Bill, and reverse unliked changes.
The third reading is the last stage, in which there is a final debate on the Bill, where the details, rather than merits of the Bill will be considered, and it is likely that only drafting amendments will be made. As a result of reforms recommended by the Select Committee on Procedure in 1967 the third reading takes place without debate unless at least 6 members object.
After both Houses have passed the Bill, if the second House amended it but approved it in principle, it will be returned to the first House. If the amendments are accepted the Bill will go for the Royal Assent, but if no agreement can be reached the Bill is defeated.
The Lords' powers of delay, amendment and veto are severely restricted by the Parliament Act 1949.
Money Bills (i.e. Bills so certified by the Speaker) that have passed the Commons may receive the Royal Assent without the Lords' approval unless:
The Lords may reject any Bill that extends the duration of Parliament beyond five years.
If a Bill is passed by the Commons but is rejected by the Lords, and in the next session is passed again by the Commons, if the Lords does not accept it without amendment (except those approved by the Commons), then the Royal Assent will be given the Lords' opposition not withstanding. There must be at least one year between the second reading of the Bill in the Commons in the first session and the third reading in the Commons in the second session.
This procedure only applies to Public Bills.
Parliamentary supremacy is Parliament's right to make whatever laws it chooses. It is derived (according to Dicey, originator of the concept) from the popular election of MPs. It may be questioned therefore, whether Europe should usurp it.
However, the customary references to parliamentary supremacy are somewhat misleading since the only thing that reigns supreme is the statute - we have statutory supremacy - even post Pepper v. Hart, the debates in Parliament can only be used in certain limited circumstances and even then they are nothing more than aids that need not be used, albeit aids with a somewhat greater weight than usual.
Parliamentary supremacy essentially originates with the Bill of Rights 1689.
As to the insusceptibility (or otherwise) of parliamentary supremacy, the Court of Appeal in Blackburn v. Attorney General 1971, rejected the argument that to join the European Community would be an illegal surrender of sovereignty, saying that Parliament "can enact, amend and repeal any legislation it pleases."
However, many things act so as to make parliamentary supremacy illusory - international treaty obligations mean that certain legislation would never be passed. In addition, the European Convention on Human Rights and the Human Rights Act (with its provision for statements that legislation is incompatible with the Convention), although not obligating rectification of non-compliant legislation, effectively mean that parliamentary supremacy is largely symbolic. Even so, its importance is such that in the passage of the Human Rights Bill, opportunities to allow judges to strike down offending legislation were spurned.
Membership of the EU is a derogation from parliamentary sovereignty in practice, even if not in theory, since all of the EU's powers flow from Parliament's sovereignty by way of the original Act, and therefore Parliament retains ultimate sovereignty.
There is a limited retention of parliamentary sovereignty in many areas of European concern, since the UK has limited powers to determine penalties for breach of EU law, and since the option is often left open in directives not to implement parts of the directive.
An example of the seriousness of the battering that parliamentary sovereignty has taken was seen in the Factortame 1991 case, where the House of Lords suspended, in a serious derogation from the traditional doctrine of parliamentary supremacy, the Merchant Shipping Act 1988, while awaiting the European Court of Justice's judgment.
In R. v. Secretary of State for Employment, ex parte Equal Opportunities Commission, the House of Lords gave a declaration that the Employment Protection (Consolidation) Act 1978 did not comply with EU law, and stated that judicial review could be sought as a faster alternative to taking a case to the European Court of Justice, to rectify defects in legislation that followed European law.
For example, in Pickmans v. Freemans PLC 1988, the treaty overruled English law.
In Maccarthys Ltd. v. Smith 1979 Lord Denning said that "we are entitled to look to the treaty as an aid to construction, but not only as an aid but as an overriding force" unless "Parliament deliberately passes an Act with the intention of acting inconsistently with the Treaty", we shall follow it. This was the case where the Court of Appeal where EU law was applied over the provisions of the Equal Pay Act 1970.
Recommendations and opinions "have no binding force" according to Article 189 of the Treaty, but in Grimaldi de Fonds v. Maladie Professionelles it was decided that there is a duty to take them into consideration when considering questions of European law.
EU concerns are, inter alia:
The EU is not concerned with
Although delegated legislation, which implements many EU directives, is convenient, the European Communities Act, says that it may not:
The criteria on which the decision to refer will be made are: