Question 1

The European Community enacts the (imaginary) Water Pollution Directive in 2017, to take effect on 1^st January 2019. The Directive states that “Sewage must not be discharged into rivers”.

The U.K. Parliament enacts the (imaginary) Sewage Act 2018, which enacts that “Sewage must not be discharged into rivers unless there is no reasonable alternative”. It came into force on 1^st January 2019.

On that day, the Essex Sewage Company begins to discharge sewage into the River Stour. An Act of Parliament makes the Essex Sewage Company responsible for the disposal of sewage in Essex. Although the Company is funded by central government money and payments from its customers, the company says that it cannot afford to dispose of sewage in any other way.

Bernard is a fisherman who harvests oysters in the River Stour so that he can sell them. His customers will no longer buy his oysters because they fear that the oysters are contaminated by sewage.

Advise Bernard upon whether:

• A) he can enforce the Directive in a UK court and
• B) the Essex Sewage Company can claim that an Act of Parliament overrides European Community law and allow the company to dispose of sewage in this way.

Answer guidance

A) The basic theme is the failure to implement a directive or implementing it improperly, which comes to much the same thing. As it is about directives a lot of introductory stuff about the EU, Articles, regulations etc. is not terribly relevant.

The first thing that springs to mind is vertical direct effect and the three-part test from cases like Van Duyn v Home Office [1974] 3 All ER 178 or Marshall v Southampton Area Health Authority [1988] AC 618. The wording of the directive must be clear, precise and unconditional, the date for implementation must have passed, and the case must be brought against an emanation of the State. The implementation date has clearly passed and the wording of the directive seems to allow no exceptions. Is the Essex Sewage Company an emanation of the state? An Act of Parliament has made it responsible for the disposal of sewage, which is a public service and it is part-funded by the State: Foster v British Gas plc [1991] 2 AC 306. Bernard looks to have a strong case that the directive is enforceable in English Law. By the principles established in Factortame No 2. [1991] AC 603, the wording of the directive would be preferred to the wording of the statute.

Indirect effect as put forward by the ECJ in cases like Von Colson v Land Nordrhein-Westfalen [1984] ECR 1891 and Marleasing v La Commercial [190] ECR I-4135 has been accepted by the UK courts in decisions such as Litster v Forth Dry Dock [1990] 1 AC 546 and Pickstone v Freeman [1989] AC 66. This would require the UK court to interpret the Act of Parliament in a way that was compatible with the directive. It does not depend upon whether the defendant is an emanation of the State. Adding words to an Act of Parliament is perfectly acceptable, so would the UK courts be willing to remove the words ‘no reasonable alternative’?

Bernard, the oyster fisherman, could consider a Francovich v Italy [1991] ECR I – 5357 claim for the UK’s failure to implement European Union law. If the UK is failing to implement the directive then it does seem to cause him loss. Again, the problem is whether the directive grants him any enforceable rights. As argued above, the wording does seem to do so.

B) This part is on the supremacy issue. We have moved from Pickin v BRB [1974] AC 765 to Factortame No 2. [1991] AC 603. The student might consider the meaning of section 2, particularly section 2(4) European Communities Act 1972. According to Lord Bridge, in Factortame, this clearly gives supremacy to EU Law, until Parliament gives different instructions to the courts.

There is always the possibility that Parliament is deliberately trying to contradict EC law. Express repeal of EC law is still possible according to Macarthys v Smith [1979] ICR 785 and Thoburn v Sunderland [2003] QB 151.

The European Union (Withdrawal) Act 2018 repealed the European Communities Act 1972 and states that the European Union can no longer make law for the UK and the European Court of Justice no longer has jurisdiction over the UK. However, this only took effect on ‘exit-day’, 31 January 2020, and the events in this problem occurred before that date. That would mean that EU Law still applied. In any case, the 2018 Act retained all EU-derived law made before that date and turned it into UK law. The principle of the supremacy of EU law over UK law also remains for these laws made before the end of January 2020. That should mean that the Directive would still have direct effect in preference to the UK Act. There is also a transition period, running until the end of 2020, when EU Law and the jurisdiction of the ECJ continue as before, except that EU laws made after 31 January no longer apply to the UK.

It does seem, though, that Bernard’s best remedy, the damages claim under Francovich v Italy [1991] ECR I – 5357, could no longer be used. The European Union (Withdrawal) Act 2018, Schedule 1, paragraph 4 states that this “There is no right in domestic law on or after exit day to damages in accordance with the rule in Francovich”. Whether this can apply to a right that came into existence before exit day will have to be decided by a court, although there is a general presumption in English Law against retrospective legislation.

Question 2

What impact will the UK’s decision to leave the European Union have on the doctrine of Parliamentary Supremacy?

Answer guidance

The UK has a tradition of parliamentary supremacy, popularised by AV Dicey. Parliament is the supreme law making authority in the UK and no other person or body can override an Act of Parliament. This was upheld by the House of Lords in Pickin v BRB [1974] AC 765.

The European Communities Act 1972 laid down that European Community law was to have legal effect in the UK. The European Court of Justice had asserted in Costa v ENEL [1964] ECR 585 that Community law overrode incompatible national law and asserted its own right to make these rulings.

It took a while for the UK courts to accept this proposition, but in R v Secretary of State for Transport, ex parte Factortame (No. 2) [1991] AC 603, the House of Lords accepted that Community law overrode national law. However, this was only because the European Communities Act 1972 instructed the UK courts to do this.

So if the European Communities Act 1972 was repealed then Community law would no longer have legal effect in the UK and would no longer have supremacy in the UK. It is thought that this would require express repeal according to Macarthys v Smith [1979] ICR 785 and Thoburn v Sunderland City Council [2003] QB 15, rather than the normal implied repeal, as the European Communities Act 1972 is a statute of constitutional importance.

First though, the UK had to give two years notice under Article 50 of the Treaty of European Union that it wanted to leave the EU. The government did this in early 2017. This met a legal challenge in R (Miller) v Secretary of State for Exiting the EU [2017] UKSC 5. Ms Miller argued that only an Act of Parliament could remove EU rights from UK citizens. Leaving the EU would inevitably mean that this part of domestic law was changed and only Parliament could authorise this. The Supreme Court agreed and in response Parliament passed the European Union (Notification of Withdrawal) Act 2017, which authorised the government to give notice. Then two years negotiations on the terms of withdrawal followed. EU law continued to apply in the UK until the notice period expired. After some delays, because Parliament could not agree upon the terms of departure, the UK left the EU on 31 January 2020.

The European Union (Withdrawal) Act 2018 repealed the European Communities Act 1972 and states that the European Union can no longer make law for the UK and the European Court of Justice no longer has jurisdiction over the UK. However, to avoid huge gaps in the law, the 2018 Act ‘retained’ EU Law made up until the 31 January 2020, ‘exit day’. This is turned into UK law and, where it clashes with existing UK law, still has supremacy. The point though is this is now all UK law, not EU law, and Parliament has the power to change any of it that it wants. The ECJ no longer has any jurisdiction over UK law and cases can no longer be referred to that court. UK judges may still want to take ECJ decisions into account, when deciding upon the meaning of the EU law that has been retained, but they are no longer obliged to do so.

The effect of EU law in the UK after withdrawal depends upon the terms of that withdrawal. Countries that have a close trading relationship with the EU have to accept certain parts of EU law. A member of the European Economic Area like Norway would be a good example. The important point though is that the Norwegian legislature has to enact those laws, they do not apply automatically as they would if Norway was a member of the EU. The UK is aiming for a looser and more distant relationship with the EU than Norway, as can be seen in the EU (Withdrawal Agreement) Act 2020. The UK Parliament might still need to adopt some EU laws, but it would be their choice, and Parliament would enact those laws, not the institutions of the EU. An important practical point is there has to some sort of mechanism to decide legal disputes on EU law. If the ECJ still had power to do this, some might feel that the UK had not regained full supremacy.

Dicey recognised that there was a distinction between “legal sovereignty” and “political sovereignty”. Parliamentary supremacy meant that if Parliament passed an Act of Parliament it was the law and could not be questioned. From a practical point of view though, there were many laws that Parliament would not pass as they would be unacceptable to the people and unenforceable. Politically, the UK might still have to accept some EU laws that it did not really want, for the sake of maintaining a trading relationship.

Question 3

Antonia becomes Prime Minister in 2016. She wants to call a General Election, but the Fixed-Term Parliaments Act 2011 states that the next General election cannot be held until May 2020. Section 2 of this Act says that an early general election can only be held if two thirds or more of the total number of MPs in the Commons vote in favour. Antonia does not think that she can secure a two-thirds majority.

Advise Antonia.

Answer guidance

Under the traditional view of parliamentary supremacy Antonia only needs a simple majority of the House to repeal this Act. As PM she is likely to have a majority. A.V. Dicey wrote that Parliament was supreme. The only thing that Parliament could not do was bind a future Parliament, because otherwise that future Parliament would not be supreme, in that it would not have the power to make any law that it wants. The courts have upheld this approach in Ellen Street Estates v Minister of Health [1934] KB 590.

It is, however, very unusual for the UK Parliament to try to protect an Act from repeal, ‘entrenchment’ as it is called, probably because most MPs are aware of Dicey’s theory. In Commonwealth countries, which have a similar system of law to the UK, such attempts at entrenchment have been successful. This courts have enforced the special procedure for repeal in Australia, Attorney-General for New South Wales v Trethowan [1932] AC 526, in South Africa, Harris v Minister of the Interior 1952 (2) SA 428 and in Sri Lanka, Bribery Commissioner v Ranasinghe [1965] AC 172. However, these cases may not be applicable to the UK, in that these countries have written constitutions and are not supreme. Their legislatures were created by the UK parliament which is.

Some have argued that what Dicey meant was that there was no subject on which Parliament could be forbidden to legislate by an earlier Parliament. It could lay down binding changes in procedure (‘Manner and Form’). For example, the powers of the House of Lords were permanently changed by the Parliament Acts 1911 and 1949. These arguments are theoretically interesting, but the courts have always refused to intervene in Parliamentary procedures and rule that Parliament was wrong: Pickin v BRB [1974] AC 765 and R (Jackson) v Attorney-General [2006] 1 AC 262. To even make such an inquiry would be to question Parliament’s supremacy.

The Fixed-Term Parliaments Act 2011 might be regarded as a statute of constitutional importance, which means it is entitled to some sort of protection from the courts: R (Jackson) v Attorney-General [2006] 1 AC 262. All that probably means is that the Act cannot be impliedly repealed, but must be expressly repealed (Thoburn v Sunderland City Council [2003] QB 15), which is presumably what Antonia would have in mind. In a country with an unwritten constitution, all Acts of Parliament can be amended or repealed.

The Fixed-Term Parliaments Act 2011, does not seem to have hindered Prime Ministers who have wanted to call an election before the 5 years was up. Theresa May was able to obtain the necessary two-thirds majority to call a General election in 2017. Boris Johnson could not secure this majority in 2019, but was able to bypass the requirements of the 2011 Act, with a short Act of Parliament, the Early Parliamentary Elections Act 2019, passed by a simple majority, which just stated the date of the next election. No one claimed that this was unconstitutional or challenged it in the courts. It is thought that the main political parties would like to repeal the 2011 Act. Whether this happens depends upon politics rather than law, but a simple majority would be used.

 Antonia only needs a simple majority to repeal the Fixed-Term Parliaments Act 2011, or she could try the simple expedient of an Early Parliamentary Elections Act. Then we would revert to the previous position where under the royal prerogative the PM could just ask the Queen for a dissolution of Parliament and the request would be granted.