Parliamentary sovereignty in the European communities: the developing doctrine

Abstract

The doctrine of Parliamentary Sovereignty is a unique feature of the British constitution. No other parliament within the European Community can claim legislative omnipotence. Put simply, the concept describes the relation of the UK Parliament to the judicature. The courts accept that every Act of the Westminster Parliament has the force of law and that there is no higher source of law, By its very nature (which can best be explained with Kelson's theory of the grundnorm). the doctrine of Parliamentary Sovereignty enjoys a peculiar status: It forms the basis of the whole legal system and can therefore not be altered by statute. In other words, Parliament cannot Impose limitations on Its own sovereignty or on that of future Parliaments. Historically, the doctrine developed to Its present form In the 19th century, when the United Kingdom enjoyed external sovereignty on an unprecedented scale, today, the situation of the United Kingdom Is characterized by mutual economic and political Interdependence with other states. The strongest challenge yet to the doctrine of Parliamentary Sovereignty has resulted from membership of the European Communities and the claim of Community law that It must prevail over norms of the national legal systems, whether prior or subsequent. This cannot be reconciled with the Idea of legal sovereignty of a national parliament. The practical solution offered by sec. 2 of the European Communities Act has helped to avoid actual conflicts, but the theoretical problem remained unsolved. However, some recent cases suggest that a fundamental change to the grundnorm which underlies the concept of Parliamentary Sovereignty may be Imminent.