Author: *Dr Sharifullah Dorani
Original Publication: Political Reflection
Date of Publication: 31 July 2020
Photo credit: AXP Photography/Pexels
Key Comment
This essay examines whether the United Kingdom accepted the supremacy of EU law over domestic law and how its courts reconciled this with parliamentary sovereignty. It analyses the European Communities Act 1972, the development of UK jurisprudence through landmark cases like Factortame, and the evolving doctrine of express repeal. It highlights the constitutional tension between national sovereignty and supranational legal obligations, making it highly relevant for both legal studies and international relations.
Summary of the Article
1. Sovereignty of the British Parliament – The essay begins by outlining the Diceyan doctrine of parliamentary sovereignty and the historical principle that nobody, including courts, could override Acts of Parliament. This creates tension when considering EU membership, as EU law’s primacy could theoretically conflict with Parliament’s continuing sovereignty.
2. European Communities Act 1972 (ECA 1972) – Key sections (2(1), 2(2), 2(4), 3(1)) incorporated EU law into UK law and allowed courts to interpret domestic legislation in line with EU law. This act partially transferred legislative authority to the EU but left ultimate sovereignty with Parliament, thereby creating the legal mechanism for EU law’s supremacy.
3. UK Courts’ Response – Initial reluctance by courts gave way to purposive interpretation of statutes in line with EU law (Macarthys Ltd, Garland, Pickstone). Factortame (1991) marked a constitutional turning point, allowing courts to suspend or disapply Acts of Parliament to comply with EU law. Subsequent cases (EOS, Thoburn) reinforced this quasi-constitutional status.
4. Revolution vs Devolution – Scholars debated whether Factortame was a revolutionary limitation on sovereignty or a devolution of power granted by Parliament. While Wade argued the EU took authority with judicial support, Lord Bridge maintained that Parliament voluntarily delegated authority via the ECA 1972.
5. Doctrine of Express Repeal – Parliament retained the ability to reclaim sovereignty through express repeal of the ECA 1972. The 2016 EU referendum and subsequent European Union (Withdrawal) Act 2018 realised this mechanism, demonstrating Parliament’s ultimate control over legislative authority.
6. International Relations Relevance – The essay shows how domestic legal systems interact with supranational entities, illustrating practical limitations on sovereignty and the political-legal dimension of European integration.
Conclusion
• UK courts accepted EU law supremacy through purposive interpretation, disapplication of conflicting domestic law, and adherence to ECJ rulings.
• Parliamentary sovereignty was curtailed while the UK remained in the EU but theoretically recoverable through express repeal.
• Factortame exemplified a constitutional adaptation to supranational legal authority, balancing domestic sovereignty with international obligations.
• The 2016 EU referendum allowed the UK to reclaim legislative sovereignty, highlighting the interplay of domestic law, supranational law, and democratic legitimacy—a key intersection for law and international relations.
➡Link to the article: EU LAW vs UK LAW – The Primacy of EU Law over National Law: Great Britain’s Response
*Dr Sharifullah Dorani holds a PhD from Durham University on America’s Afghanistan War, a Master of Laws from University College London, and a degree in law from the University of Northampton, all in the UK. He is the author of numerous scholarly articles and two acclaimed books: The Lone Leopard, a novel set in Afghanistan, and America in Afghanistan, published by Bloomsbury Publishing. He is the founder of CEPSAF and serves as the South Asia and Middle Eastern Editor at CESRAN International. All of Dr Dorani’s work is written to the highest academic standards, is widely indexed through Google Scholar, and is available in the libraries of hundreds of institutions worldwide, including Oxford and Harvard.