Abstract Law and Political Reality
in the Post-European-Accession British

Constitution
J. W Bridge'*'

"the tide is advancing. It is no use our trying to stop it, any more than King
Canute did. He got his feet wet. I expect we shall all get our feet wet too."

Lord Denning!

Introduction
Just over fourteen years ago the United Kingdom acceded to the European
Communities. Membership has necessarily involved accepting "the whole corpus
of accumulated Community law, particularly in the decisions of the Court of
Justice since 1952.,,2 Among those decisions, by far the most important and
significant lay down the twin doctrines of the supremacy of Community law and
the direct enforceability of Community law in the courts of the member states.3 At
midnight on 31 December 1972/1 January 1973 we therefore entered a new
constitutional world which is not an amorphous one but one which exists within a
designed framework established by the Treaties.4 Our membership was initially
subject to a period of transition,s but after that had passed we became subject to
the full scope and force of Community law. As the European Court put it: "The
expiry of the transitional period laid down by the Treaty meant that, from that
time, those matters and areas explicitly attributed to the Community came under
Community jurisdiction."6 Whilst some still minimise the domestic impact of
membership of the Community as little more than participation in a Europe des

·Professor of Public Law in the University of Exeter.
1. "The Incoming Tide (Inaugural Lord Fletcher Lecture, 10 December 1979), in The Lord Fletcher

Leaures 1979-1982 (1983), 3 at pA.
2. House of Lords, Select Committee on the European Communities, Session 1977-78, 17th Report,

The Enlargement of the Community, Vol. 1, Annex A, para. 2.
3. See D. Lasok and J. W. Bridge, An Introduction to the Law and Institutions of the European

Communities 3rd ed. (1982), pp. 116-153.
4. Cf J. D. 8. Mitchell, "Constitutional Law", in Then and Now 1799-1974 (1974), 73 at p.lOO.
5. See Treaty and Act of Accession 1972,)0 1972, L73/4.
6. Case 231/78 E. C. Commission v. United Kingrkim [1979] E.C.R. 1447 at p. 1461.

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patTies,7 the general consensus of scholarly opinion is that the impact has clearly
been constitutional, even if views differ over the sense in which that term should
be employed.8 Within that consensus, with one major exception,9 runs a common
theme that while the continuing nature of the sovereignty of the United Kingdom
ParliamentlO remains intact, a range of practical considerations permit us to
honour the legal obligations of Community membership. This is borne out by the
fact that over the past fourteen years, despite the apparently precarious and
uncertain nature of our membership, II we have very largely played the game
according to Community rules. Our judges have not only arrlied Community law
they have also acknowledged its supremacy, at least dejaao, and the eponym who
graces this Journal has been credited with accomplishing a "dexterous
revolution".13 Parliament, subject to one exception to be discussed later, has made
no apparent attempt to legislate contrary to Community law. Further, when the
Court of Justice has adjudged the law of the United Kingdom to be deficient in its
implementation of Community objectives the necessary corrective action has been
taken.14

It is the aim of this article to examine the apparent paradox that while the new
European dimension of our law "has not yet upset the basic properties of the legal
universe"ls there have nevertheless been major and, it will be argued, enduring

7. See I. Harden and N. Lewis, The Noble Lie (1986), at p.310.
8. See, for example, P. Bromhead, Britain's Droeloping Constitution (1974) Ch.22; O. Hood Phillips,

Constititional and Administrative Law 6th ed. (1978), at pp. 142, 146 and 222; J. Usher, Europnm
Community Law and National Law (1981); T. C. Hartley andJ. A. G. Griffith, Guvtrflment atUlLasP 2nd
ed. (1981), at pp. 403-407; L. Collins, European Community LAw in the United Kingdom 3rd ed. (1984),
at pp. 21-33; C. Turpin, British GllVernment and the Constitution (1985), ch.5; S.A. de Smith,
Constitutional and Administrative Law 5th ed. (1985), at pp. 37-38, 90-94,104,108; E. C. S. Wade and
A. W. Bradley, Constitutional and Administrative Law 10th ed. (1985), at pp. 81-82,102-103,135-138.
9. See the writings of J. D. B. Mitchell, in particular "What Happened to the Constitution on 1st

January 1973?", (1980) 11 Cambrian Law Rroiew 69, who argued that by entering a new but established
polity the British Constitution experienced a revolutionary change which varied its fundamental legal
principles. On the possible transfer of sovereignty see J. Usher, European Community Lars>and NalionaJ
Law (1981).
10. See H. W. R. Wade, "The Legal Basis of Sovereignty", [1955] Cambridge LawJoumal172 and H.
L. A. Hart, The Concept of Law (1961), at p.146. The writer subscribes to this view.
11. As suggested by Lord Bridge of Harwich, "Attempts towards a European Constitution in the light
of the British legal system", inJ. Schwarze and R. Bieber (Eds.) Eine VerfassungjUrEuroptJ (1984), atpp.
119-120.
12. For a review of the cases see D. N. Clarke and B. E. Sufrin, "Constitutional Conundrums: The
Impact of the United Kingdom's Membership of the Communities on Constitutional Theory", in M.
P. Furmston, R. Kerridge and B. E. Sufrin (Eds.) The Effect on English Domestic Law ofMembenhip of the
European Communities and of Ratification of the European Convention on Human Rights (1983), 32 at p.57 d
seq.
13. See T. R. S. Allan, "Parliamentary Sovereignty: Lord Denning's Dexterous Revolution", (1983) 31
Oxford Journal of Legal Studies 22.
14. For example, the Passenger and Goods Vehicles (Recording Equipment) Regulations 1979, S. 1.
1979, No. 1746 made in response to Case 128/78 E. C. Commission v. United Kingdom [1979] ECR 419,
and the Equal Pay (Amendment) Regulations 1983, S. 1. 1983, No. 1794 made in response to Case
61/81 E. C. Commission v. United Kingdom [1982) ECR 2601. As to U.K. sources generally, see Sweet
& Maxwell's Encyclopedia of European Community Law, Vols. A I and II (1973 and continued).
15.0. L. Keir and F. H. Lawson, Cases in Constitutional Law 6th ed. (1979), Preface, at p. v.

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ABSTRACT LAW AND POLITICAL REALITY IN THE BRITISH CONSTITUTION

constitutional changes. The starting point will be a consideration of what the
Community expects of a new member and the British Government and
Parliament's perception of and response to that expectation. From there, the
reality of the relationship between Community law-making and Parliamentary
sovereignty will be examined together with the role of Part I of the European
Communities Act 1972. Finally an overall assessment will be attempted.

The obligations of membership and the terms of British' accession
The procedure for the admission of a new member state under Article 237 of the
EEC Treaty includes the Commission expressing an opinion on the application.
The several opinions expressed by the Commission in connection with the
sequence of applications made by the United Kingdom clearly spell out the basic
terms of membership. In 1963 the Commission expressed the view that "any
application for accession to the Community would mean that the country
concerned unreservedly accepted the rules and objectives of the Treaty of
Rome.,,16 It was also made clear that the United Kingdom would have to accept
not only the Treaty but also the substantial advances which had been made since
the Treaty was signed 17 and Community law would have to be given the same
force in the United Kingdom as in the original member states. 18 Four years later,
at the time of the United Kingdom's second application, the Commission made an
extensive study of the prospects for enlarging the Community. 19 It referred to the
scope of the obligations of new members in the following terms:

"Today, belonging to the Communities necessarily means accepting not only
their original charters - the Treaties - but also the objectives of political
unification affirmed in the Preambles to the Treaties ... Similarly, new
members will have to accept the decisions taken since the Treaties were
adopted. These decisions are the fruit of an often hard-won compromise
between the Six, and they have also established an incontestable de facto
solidarity between them. It would be impossible and illusory to attempt to call
them into question. Consequently, as a general rule, a solution to the concrete
problems will have to be sought by working out transitional measures and not
by amending the existing rules."zo

In this Opinion the Commission took specific note of the differences between
the United Kingdom legal system and the legal systems of the Six in the context of

16. EEC Commission, Report to the European Parliament on the state of the negotiations with the United
Kingdom (1963), at p.12.
17. Ibid., at p.l11.
18. Ibid., at p.l04.
19. E. C. Commission, Opinion on the Applications for Membership received from the United Kingdom,
Ireland, Denmark and Norway, COM (67) 750.
20. Ibid., at p.5.
21. Ibid., at p.103.

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the proper application of Community law in the United Kingdom. In the
Commission's view, "The problems involved in establishing the conditions under
which Community law will have its full effect in the United Kingdom do not in fact
differ in character from those already encountered by the present Member
States.'l21 The Commission was satisfied that the transfer to the Community, as
required by the Treaty, of certain legislative powers "with the consequences this
entails for the legislative activity of Parliament (adoption of measures required by
Community law, present and future; avoidance of measures incompatible with
Community law)" could be validly effected by Act of Parliament.22

The negotiations which led to membership proceeded on that basis so that in its
favourable formal opinion on the eve of the signature of the Treaty of Accession
the Commission was able to declare: (i) that the Treaties, their political objectives
and all existing acts of the Community institutions were accepted without reserve;
(ii) that essential features of the Community legal system were the direct
applicability of Community law and its precedence over national provisions
conflicting with it; and (iii) that accession entailed recognition of the binding force
of those rules and of the indispensable nature of their observance as a guarantee of
the effectiveness and unity of Community law.23 Therefore, by the Treaty and Act
of Accession 1972, "the provisions of the original Treaties and the acts adopted by
the institutions of the Communities" became binding on and applied in the United
Kingdom from 1 January 1973 subject only to the transitional arrangements.24

It is very clear from government statements, Parliamentary Debates and other
sources that the nature of the legal obligations of membership and their
constitutional significance for the United Kingdom were fully appreciated. In two
of the Commission Opinions cited earlier reference is made to specific
undertakings by Her Majesty's Government to "subscribe fully to the various aims
which the Governments of the member countries of the Community had set
themselves",25 to accept not only the economic but also the political objectives of
the Treaties,26 and to accept "an unprecedented innovation in United Kingdom
constitutional law" namely the "subordination of municipal law to Community law
which is directly enforceable". 27 As early as 1962 the then Lord Chancellor, Lord
Dilhorne, in a debate on Britain and the Common Market said: "If one subscribes
to the objectives of the Treaties it follows that one cannot logically object to the
degree of supra-national determination and administration necessary to secure the

22. Ibid
23. E. C. Commission, Opinion of 19 January 1972 on Applications fOr Accession to the European
Communities by Denmark, Ireland, Norway and the United Kingdom, JO 1972, L73/3.
24. Act of Accession 1972, art. 2.
25. Supra n. 16, at pp. 13-14.
26. Supra n. 19, at p.18:
27. Ibid., at p.103. The recent assertion by Lord Denning that upon accession the aims of the
Community were merely economic but have subsequently become political and legal is, with respect,
unfounded; see House of Lords Debates, 5th Series, 1985-86, Vo1.479,col.1055 et seq.

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ABSTRACT LAW AND POLITICAL REALITY IN THE BRITISH CONSTITUTION

uniform application of policy throughout the member states to attain these
objectives . . . By agreeing to be bound by the Treaty we, of course, commit
ourselves to comply with the provisions of that treaty.,,28Five years later, under a
different Government, a White Paper was published which assessed the legal and
constitutional implications of United Kingdom membership.29 In a debate on that
document the new Lord Chancellor, Lord Gardiner, said: "we have made it clear
that it would not be our intention to change the nature, spirit or workings of the
Community any more than would inevitably result from the fact that the number of
members had increased from the present figure.,,30 Both Conservative and
Labour governments were therefore ad idem on this fundamental issue and the
negotiations which led to accession in 1973 proceeded on this agreed basis.3)
Parliamentary approval of the decision of principle to join the Community was also
secured on that basis.32

Final confirmation of this, it is submitted, was given by means of the referendum
on United Kingdom membership in 1975. The "renegotiations" which led up to
the referendum were largely focussed on such specific issues as changes in the
Common Agricultural Policy and the methods of financing the Community
budget.33 But one objective of the "renegotiations" potentially struck at the
fundamental principles of Community law, namely the retention by the United
Kingdom Parliament "of those powers over the British economy needed to pursue
effective regional, industrial and fiscal policies" .34Further, the right was reserved
"to propose changes in the Treaties if it should tum out that essential interests
cannot be met without them.,,35 The referendum was therefore seen as addressing
itself to a unique issue which had "fundamental implications for the future of this
country, for the political relationship between the United Kingdom and the other
Member Governments of the Community, and for the constitutional position of
Parliament.,,36 In the event the "renegotiations" turned out to be a classic instance
of parturiunt montes nascitur ridicu/us mus. On its own admission the Labour
government did not achieve all its objectives in full.37 The Treaties remained

28. House of Lords Debates, 5th Series, 1961-62, Vo1.243,co1.421.
29. Legal and Constitutional Implications of United Kingdom Membership of the European Commullities
(1967), Cmnd.3301.
30. House ('fLords Debates, 5th Series, 1966-67, Vo1.282,co1.l205.
31. For example, Mr Geoffrey Rippon in the second reading debate on the European Communities Bill
relied on the 1967 White Paper and on the statements of Lord Gardiner: House of Commons Debates, 5th
Series, 1971-72, Vo1.831,cols. 278, 279. Similarly the Conservative Government in 1971 confirmed
and adopted the negotiating stance which its predecessor had taken: The United Kingdom alld the
European Communities (1971), Cmnd.4715, para.22.
32. For the debate on the issue of principle, see House of Commons Debates, 5th Series, 1970-71,
Vol.823 at cols. 911, 1094, 1234, 1480, 1731 and 2076.
33. See Renegotiation of the Terms of Entry into the European Economic Community (1974), Cmnd.5593.
34. Ibid., para.3, at p.4.
35. Ibid., para.l5.
36. Referendum on United Kingdom Membership of the European Community (1975), Cmnd.5925, Preface,
at p.2.
37. Membership of the European Community (1975), Cmnd.5999, at p.9.

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unamended.38 In relation to the specific areas of Parliamentary lawmaking raised
in the "renegotiations", the government appears to have been satisfied that any
problems could be solved by administrative means.39 On the more general and
fundamental issue of the role of Parliament and its relationship with Community
law the government did little more than re-iterate what had already been said in
the 1967 White Paper: "National courts are required to apply directly applicable
Community law and to give it priority should it conflict with nationallegislation.,,4Q
Therefore the significance of the "renegotiations" as far as the fundamental legal
obligations of membership were concerned was to confirm them. That
confirmation was then included in the terms of the Government's recommenda-
tion to the electorate to vote for staying in the Community.41 The explanatory
booklet which the Government circulated to all households prior to the
referendum referred to the practical restraints on national freedom of action in the
modern world and then said: "It is the Council of Ministers, and not the Market's
officials, who take the important decisions. These decisions can be taken only if all
the members of the Council agree. The Minister representing Britain can veto any
proposal for a new law or a new tax if he considers it to be against British interests.
Ministers from the other Governments have the same right to veto.,,42 The clear
implication of this is that in all cases where the veto is not invoked the decision will
be accepted by the British Government and implemented. The referendum was
seen by the British Government as a unique event and as "the means by which the
British people will decide th"e issue of our membership of the European
community.,,43 The clear-cut vote in favour of continuing membership may
therefore be said to have signified popular approval of the terms of membership.

Once the "momentous decision" to join the European Communities had been
made the way forward was very clear. As Lord Diplock put it in the House of
Lords' debate on the, European Communities Bill: "That decision having been
made, the obligations which we thereby undertake under the Treaties make it
inevitable what we have to do to comply with them. The constitutional and
legislative system of this country makes it inevitable how, within comparatively
narrow limits, we have to do it, and this Bill does no more than give legal effect to
that political decision."44 To some extent, as Lord Diplock's observation implies,

38. Although the government reserved the right to propose treaty revision in future if necessary, ibid., at
p.8.
39. Ibid., at p.7 and Membership of the European Community: Report on Retlegotiation (1975), Cmnd.6003,
paras.52-68.
40. Cmnd.6003, para.133; the 1967 White Paper is quoted at length in para.l34.
41. Ibid., paras.114-141.
42. Britain's New Deal in Europe, (HMSO, 1975) at p.12.
43. Statement by the Prime Minister on January 23, 1975, Supra n.36, Annex A, at p.lO. Also see G.
Winterton, "The British Grundnorm: Parliamentary Supremacy Re-examined", (1976) 92 L.QR. 591
and A. W. Bradley, "The Sovereignty of Parliament- in Perpetuity?", inJ.Jowell and D. Oliver (Eds.),
The Changing Constitution (1985) 23, at pAO.
44. House of Lords Debates, 5th Series, 1972, Vo1.333,col.l275.

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ABSTRACT LAW AND POLITICAL REALITY IN THE BRITISH CONSTITUTION

the British Government and Parliament were faced with a not unfamiliar objective,
namely that of giving domestic effect to the provisions of Treaties to which the
United Kingdom had become a party. Legislation for this purpose is necessary
because of the long-standing constitutional principle that "adherence to a treaty
does not of itself have the effect of changing our internal law even where
provisions of the treaty are intended to have direct internal effect as law within the
participating States."4S The "constitutional innovation",46 however, lay in
accepting future Community law as enforceable in the United Kingdom, enabling
Community law to override national law so far as inconsistent with it, and
requiring the courts of the United Kingdom to seek and accept the rulings of the
European Court.47 The aim of Part I of the European Comrtmnities Act 1972 is to
achieve all of those crucial objectives.

It is very clear from that Act and from official and unofficial statements made
about it that those responsible for its preparation fully accepted the traditional view
ofparIiamentary sovereignty.48 As Lord Dilhorne, L.c. put it in a debate in 1962:
"An Act of Parliament would be required to apply these Treaties ... That Act of
Parliament, like any other, could be repealed by a subsequent Act; and if that
happened the Treaties would cease to be law in this country ... Parliament could
repeal the Act applying these Treaties; it cannot be prevented from doing SO.,,49
This traditional approach therefore relies upon the doctrine of parliamentary
restraint to ensure that future laws made by Parliament are at all times compatible
with Community law. Lord Dilhorne, earlier in the speech cited above, said: "In
any subsequent legislation of our own we should have to take good care that it did
not conflict with any Community regulations or directives."so This theme of
restraint is taken up by the 1967 White Paper,Sl by Lord Gardiner, L.c.S2 and by
Mr Geoffrey Rippon when he was introducing the European Communities Bill in
the House of Commons. 53 Again, as was pointed out at the time, 54 as a matter of
principle the doctrine of parliamentary restraint was not unprecedented, S5
although here its scope and its significance for domestic law were both clearly

45. Legal and Constitutional Implications of United Kingdom Membership of the Europeall Coml/llmities
(1967), Cmnd.3301, para.22. Also see McWhirter v. Attorney General [1972] C.M.L.R. 882, per Lord
Denning, M.R., at p.886.
46. Cmnd.3301, para.22.
47. Ibid., paras.22, 23 and 28.
48. See Sir Geoffrey Howe, "The European Communities Act 1972", (1973) InternationalAffairs I, at
p.8.
49. House of Lords Debates, 5th Series, 1961-62, Vo1.243, cols.421-422. Also see the Foreign Secretary
(Earl of Home) to the same effect, ibid., co1.279.
50. Ibid., co1.420.
51. Cmnd.3301, para.23.
52. House of Lords Debates, 5th Series, 1966-67, Vo1.282, co1.1202.
53. House of Commons Debates, 5th Series, 1971-72, Vo1.831, co1.279.
54. See nn.51 and 52, supra.
55. For example, restraint in relation to legislation in conflict with the Statute of Westminster, 1931 and
as a result of treaty constraints imposed by membership of GA TI, NATO, and the UN.

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novel. Successive British Governments in contemplating the practicalities of
honouring the obligations of membership of the European Community therefore
proceeded on the basis that proper restraint would be exercised by Parliament. In
terms of Lord Dilhorne's striking simile: ''Just as a person does not contemplate
divorce when embarking on matrimony ... so here, if we decide to join, we must, I
submit, do it wholeheartedly and with the intention of playing our full part as a
member of the Community in fostering its purposes and objectives."s6 Thus the
apparent risk to the unity and uniformity of Community law represented by the
continued existence of the "ultimate sovereignty of Parliament"S7 would in
practice be removed by the political fact of British membership. Thus true to
British constitutional tradition and practice a wholly conventional and pragmatic
means of achieving the supremacy of Community law was adopted, supported by a
statutory injunction to the courts in favour of Community law.s8 Sir Geoffrey
Howe, speaking on behalf of himself and his ministerial colleagues, said at the
time: "We did not believe that we could have done more than this to resolve, in
advance, every problem or possible conflict that might perhaps arise in the
future."s9

It has already been pointed out that the Commission of the European
Communities was fully satisfied that the United Kingdom would be able to honour
the obligations of membership by the political and legal means proposed, despite
the retention of the ultimate sovereignty ofParliament.6o It is indeed arguable that
the doctrine of parliamentary restraint is entirely compatible with Article 5 of the
EEC Treaty which requires member states to "abstain from any measure which
could jeopardise the attainment of the objectives of this Treaty,,61 and does not in
terms call for a legal guarantee of such abstention.

It was not doubted that acceptance of membership of the European Community
on the terms negotiated would have far-reaching consequences for the practical
exercise of law-making power by Parliament. This was fully appreciated, for
example, by the Royal Commission on the Constitution the deliberations of which
took place against the background of the accession negotiations.62All members of
the Royal Commission accepted the traditional doctine of the supremacy of
Parliament,63 but it was acknowledged that British membership of the European
Community would involve "the acceptance of a measure of government from

56. House of Lords Debates, 5th Series, 1961-62, Vo1.243, coIA22.
57. A term used by Mr Geoffrey Rippon: see House of Commons Debates, 5th Series, 1971-72, Vol.831,
co1.278.
58. By virtue of European Communities Act 1972, s.2(4) to be discussed further below. On the aim of
that subsection see supra n.57 and Lord Hailsham, L.c. in House of Lords Debates, 5th Series, 1972, Vol.
333, co1.1230.
59. "The European Communities Act 1972", (1973) 49 International Affairs 1, at p.lO.
60. Supra n.21.
61. Emphasis added.
62. The Royal Commission began its work in 1969 and reported in October 1973.
63. See the Royal Commission's Report, Vol.1, Cmnd.5460, para.56.

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ABSTRACT LAW AND POLITICAL REALITY IN THE BRITISH CONSTITUTION

Brussels".64 Therefore, in the context of the Royal Commission's consideration of
devolution, a practical consequence of membership would be that "The powers
that might be devolved and the freedom with which those powers could be
exercised by the regions would be restricted by Community provisions applicable
within the United Kingdom."65 The dissenting minority on the Royal Commission
agreed with this and said that "it would hardly make sense ... to seek to devolve
legislativepower and sovereignty ... in those matters where legislative authority is
in fact moving from London to Brussels.,,66 As Mr Enoch Powell, a well-known
opponent of British membership, put it recently "In 1972 the House made a
comprehensive renunciation of its powers - legislative and financial - and of
British judicial authority and of the control of the House over policy. It did that on
the basis of the treaty to which we were acceding ... ,,67

Community law, Parliament and the European Communities Act
The assertion was made at the outset that during the fourteen years of
membership the United Kingdom has been a full and loyal participant in the new
constitutional and legal order which it has entered. Despite what Lord Bridge has
suggested is an "inherent weakness of our constitution,,68 the forecast of a pair of
early commentators has proved accurate and we have "found enough
constitutional space to ensure the supremacy of directly applicable Community law
... ,,69Most attempts to analyse how this has happened have tended to focus on
Part I of the European Communities Act and the role of the judges. This is
understandable because those matters have a high visibility and are overt
manifestations of the actuality of British membership. Whilst it is not intended to
deny the important part played by the Act and by our judges, it is submitted that
there are less public but more fundamental factors which explain and in a real
sense guarantee our fulfilment of the conditions of membership. These involvethe
nature of Community law and the part played by the United Kingdom
Government in law-making both by the Community and by Parliament.

In the first place, a characteristic feature of Community law as a new and
independent legal order with the goal of achieving economic integration is that in a
number of important fields it replaces the domestic laws of the member states.70
To take two major instances, both the rules of customs law and of the law relating

64. Ibid., para.409.
65. Ibid., para.404. Also see para.413 to the same effect.
66. See the "Memorandum of Dissent by Lord Crowther-Hunt and Professor A. T. Peacock", Ruyal
Commission's Report, Vol.2, Cmnd.5460-I, para.83. Also see paras.86 and 88 to the same effect.
67. In a debate on the European Community and the Single European Act, House of Commons Debates,
6th Series, 1985-86, Vol.93, cols.352-353. As to the Single European Act, see European Communities
No.12 (1986), Cmnd.9758.
68. Supra n.ll, at p.1l7.
69. G. Child and J. Evans, Britain, Europe and the Law (1973), at p.20.
70. See generally J. Usher, European Community Law and National Law (1981), Ch.3.

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to agriculture currently in force in the United Kingdom are the relevant rules of
Community law. The Commissioners of Customs and Excise and the Intervention
Board for Agricultural Produce respectively are performing Community functions
in pursuance of directly applicable Community regulations.71 As the European
Court has said in relation to customs law: "the Common Customs Tariff [has]
replaced the national customs tariff of the Member States and, subject to review by
the courts responsible for applying and interpreting Community law, in particular
on questions raised under Article 177 of the Treaty, the Community authorities
alone have jurisdiction to interpret and determine the legal effect of the headings
which it comprises."n A recent case provides a clear illustration of the practical
effect of this ruling in the United Kingdom. H.M. Customs seized consignments
of inflatable, life-size "sex dolls", which were being imported into the United
Kingdom from the Federal Republic of Germany, on the grounds that the seizure
was justified by the public morality exception in the rules of Community law
concerning the free movement of goods.73 The seizure was challenged in an
English court which sought a preliminary ruling on the point from the European
Court. That Court ruled that the public morality exception did not apply to these
goods since they were not prohibited from manufacture or sale within the United
Kingdom. The seizure was therefore an unjustified restriction on imports contrary
to Article 30 of the EEC Treaty.74 The outcome of this case was subsequently
challenged in questions asked in the House of Lords. 75Lord Denning criticised
the European Court's ruling and asked: "are we not entitled to go by the Treaty of
Rome itself and to ignore, if you please, the wrong decisions of the European
Court, or can we not tell our courts to cock a snook at the European court?,,76But
the Government's spokesman made it clear that no such option was in fact open:
"under the Treaty of Rome the government are bound by the judgment of the
European Court of Justice. Henceforth Customs and Excise will apply their
controls on imported goods in line with the court's judgment.,,77 Given the direct
applicability of the relevant rules of law and the acknowledgement of the binding
nature of the European Court's interpretation of them, the Government, as the
manager and initiator of Parliament's legislative business, is clearly not going to
introduce bills relating to customs matters. The field has been pre-empted by
Community law. While Parliament, as a matter of law, retains the authority to

71. See Halsbury's Laws of England 4th ed., vo1.51, European Communities, Title 3: Application of
Community Law in National Courts, paras.3.28, 3.29.
72. Case 38/75 Douaneagent der N. V. Nederlandse Spoorwegen v. IlISpecteur der invoerrechten ell accjnzC1l
[1975] E.C.R. 1439, at p.1449. For cases to similar effect in relation to agriculture see]. Usher, supra
n.70.
73. See EEC Treaty, art.36.
74. Case 121/85 Conegate Ltd v. H.M. Customs and Excise [1986] 1 C.M.L.R. 739.
75. House of Lords Debates, 5th Series, 1985-86, Vo1.475,co1.702.
76. Ibid., co1.703. Also see Lord Denning's comments in House of Lords Debates, 5th Series, 1985-86,
Vo1.479,cols.1057-1058.
77. Supra n.75, col. 702, per the Secretary of State for Employment (Lord Young of GrafTham).

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legislate in that field, as a practical matter the opportunity to do so will not arise. In
such situations as these there can be no real risk of our domestic law conflicting
with Community law because Community law occupies the field.

Secondly, while the substantive content of Community rules is a matter of
Community law, whenever those rules are changed or new ones made the
participation by the United Kingdom in the Community's law-making processes is
of supreme constitutional significance. It must be remembered that the Council is
the principal Community legislator both in the sense of law-making in its own
name and in the sense of having authority to confer law-making powers on the
Commission.78 As a member of the Council the United Kingdom Government
therefore participates in all exercises of this legislative authority. Under the terms
of the EEC Treaty two patterns of voting are employed in the Council: a qualified
majority as defined in Article 148 (2), as amended; and unanimity. Unanimity is
required most notably for the issuing of directives by the Council under Article
100 for the purpose of the approximation of laws. In such a case each member
state in effect has a veto. If a directive is issued then, by definition, each member
state will have voted in favour of it. Such a vote by the United Kingdom
Government implies that the government is willing and intends to take the
necessary implementing measures by introducing legislation or otherwise, as
appropriate. The practical effect of this is to limit significantly the scope for
Parliamentary legislation in the field covered by the directive since it may
reasonably be supposed that any legislation proposed by the Government in this
connection will be tailor-made to serve the objectives of the directive to which
agreement has already been given. As the House of Lords Select Committee on
the European Communities has put it: "In concrete terms, the issue by the
Council of a directive under Article 100 takes out of the democratic process of the
United Kingdom's Parliament a part of that country's legislative activity.
Moreover, since a directive once adopted can be repealed only with the agreement
of all the Member States, the result of the directive is to move to the Council part
of the country's legislative activity with no practical possibility of getting it back.,,79

As far as regulations are concerned the general voting requirement is a qualified
majority,80 subject to the availability of an extra-legal power of veto under the
terms of the Luxembourg Accords of 196681 whenever "very important interests"
of one or more member states are at stake. Again, a range of practical possibilities
present themselves. If the United Kingdom Government forms part of a qualified
majority in favour of a regulation, or if it opposes a regulation and is out-voted and
does not invoke the Luxembourg Accords, then a regulation will be made. Such a

78. See D. Lasok and J. W. Bridge, supra n.3., Chs. S, 6 and 8(D).
79. Session 1977-78, 22nd Report, Approximation of Laws under article 100 of the EEC Treaty, para. IS.
80. See EEC Treaty, art.148(2), as amended.
81. See EEC Bulletin, 1966, No.3, at pp.9, 10. Also see D. Lasok and J. W. Bridge, supra n.3, at
pp.181-18S.

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regulation, as a directly applicable act82 and by virtue of section 2 (1) of the
European Communities Act 1972, will without further enacnnent be recognised
and available in law, and be enforced, allowed and followed in the United
Kingdom. In such a situation any conflict with prior United Kingdom law will be
resolved in favour of the regulation by the simple operation of the lex posterior rule.
Since in such a case the United Kingdom Government will have taken part in the
preparation and enacnnent of the regulation and will have either voted in favour of
it or at least acquiesced in it, the likelihood of the Government introducing
incompatible legislative proposals in Parliament is extremely remote.83 If, on the
other hand, the United Kingdom Government invokes the Luxembourg Accords
and uses the veto, then no regulation will be made until the Government is
satisfied that our "very important interests" have been safeguarded and until then
there can be no possibility of conflict with our domestic law on that particular
issue. Although under the terms of the Single European Act,84 for the purposes of
completing the Community's internal market, there will be a move from unanimity
to qualified majority voting it has been made clear that the Luxembourg Accords
remain in place and unaffected.85

Successive British Governments have taken very seriously the responsibilty, in
effect remitted to them by Parliament through passing the European Communities
Act 1972, for safeguarding United Kingdom interests in the deliberations of the
Council which result in directly applicable Community law.86 This has not always
endeared the United Kingdom to the other member states: "Although the United
Kingdom faithfully implements decisions once they have been taken, other
Member States see it as reluctant to allow the decisions to be taken in the first
place and insisting on every detail being explored and settled in advance.,,87 While
in a sense this may make the United Kingdom seem less extrovertly communautaire
than some members, in terms of comminnent to Community law once the
decisions have been taken the United Kingdom may in some respects be said to be
more communautaire than some. This need to be fully convinced before a decision
is taken also makes it highly unlikely that any contradictory national legislation will
in practice be introduced in Parliament.

For the practical reasons rehearsed above it is submitted that United Kingdom
legislation expressly opposing the requirements of Community law is extremely

82. By virtue of EEC Treaty, art.189.
83. Cf Lord Gardiner, L.c., House of Lords Debates, 5th Series, 1966-67, Vo1.282,co1.1203.
84. See European Communities No. 12 (1986) Cmnd.9758, in particular arts.13-19.
85. See the Statement by the Foreign Secretary (Sir Geoffrey Howe), House of Commons Debates, 6th
Series, 1985-86, Vo1.96,cols.319-321. For a less sanguine view see House of Lords Select Committee
on the European Communities, Session 1985-86, 12th Report, The Single European Act and
Parliamentary Scmtiny, paras.l4 & 15.
86. Cf Membership of the European Commullity: Report on Renegotiation (1975), Cmnd.6003, para. 136 and
House of Lords Select Committee on the European Communities, Session 1984-85, 14th Report,
European Union, para.46.
87. House of Lords Report on European Union, ibid., para.27.

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unlikely given the political fact of continuing British membership: "it is unlikely
that Parliament in these circumstances would wish to proceed with matters
inconsistent with treaty obligations.,,88 A working assumption can therefore be
advanced that at any given time the Community rules, in the making of which the
United Kingdom has participated, will fill the occupied field of Community
concern and that United Kingdom legislation, apart from where it is designed to
achieve some Community goal, will concern itself with the remaining unoccupied
field. The United Kingdom Government is effectively in control of the legislative
programme of the British Parliament and is also a Community legislator through
its membership of the Council. The Government is therefore well-placed to
maintain compatibility between the two legal orders. The effectiveness of Part I of
the European Communities Act 1972 and the nature of the demands placed on the
judiciary by our Community membership must therefore be considered against
this background of political reality;89 consideration in the light of abstract law
while intellectually challenging will not, given the nature of our constitution, tell us
much about how the system works in practice. Any discrepancies between
Community law and laws made by the British Parliament are therefore likely to be
unintentional and the result of inadvertence or faulty drafting. Therefore the
combination of the statutory rule of construction in favour of Community law90

and the requirement that our judges interpret and apply Community law in
accordance with the case law of the European Court91 provide perfecdy adequate
practical means of correcting such discrepancies. As Sir Geoffrey Howe has put it:

"What the Act seeks to do ... is to enjoin our courts, in their interpretation of
future legislation, to give full effect to the concept of 'enforceable Community
rights' which, as defined in section 2 (1) (and the treaties), contains the
element of supremacy ... All, therefore, that our courts have been required
to do is simply to limit the consequences of any United Kingdom statute that
does conflict with Community law, though in the case of a future statute any
limitation of its consequences would be confined to what is practicable and
would not be likely to iron out a conflict which was plainly intentional.,,92

This expectation, faciliated by the consistent exercise of parliamentary restraint,
has been realised in the form of Lord Denning's landmark judgment in Macarthy's
Ltd. v. Smith, in which he advanced the principle of construction that the courts
should always presume that Parliament intended to legislate in conformity with our
obligations as a member of the Community unless the contrary is stated in express

88. Mr Geoffrey Rippon, House of Commons Debates, 5th Series, 1971-72, Vo1.831, co1.279.
89. As J. D. B. Mitchell once observed "constitutional law is, at least, a half-brother to politics": supra
n.4, at p.73.
90. See European Communities Act 1972, s.2(4).
91. Ibid., s.3(1).
92. Supra n.48, at pp.7 and 10.

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terms.93 This principle has subsequently received a measure of support from the
House of Lords.94

The assertion that the European Communities Act 1972 can only be amended
or repealed by intentional and express terms in a subsequent Act raises questions
concerning the doctrine of implied repeal. That doctrine, which is seen as a
corollary to the traditional doctrine of the sovereignty of Parliament, takes the lex
posterior rule to its logical extreme and provides that "when two Acts conflict the
later is construed as amending or repealing the earlier one.,,95 If a directly
applicable rule of Community law, which is enforceable in the United Kingdom by
virtue of section 2 (1) of the European Communities Act 1972, says X and an Act
of the United Kingdom Parliament of a later date says X minus 1, has that later Act
impliedly repealed either the European Communities Act pro tanto or the
Community rule in question? It is submitted that the answer to that question is
"no" and that that answer has much more to do with the scope of the doctrine of
implied repeal and the relationship between Community law and the European
Communities Act than it has with the doctrine of the supremacy of Community
law. The fallacy inherent in the view that the doctrine of implied repeal applies in
situations like the hypothetical one mentioned above96 has already been exposed
by Evelyn Ellis: "implied repeal occurs where, as in the Vauxhall and Ellen Street
cases, statute 1 makes provision for a particular situation and then statute 2 is
passed saying something different about that same situation. There is thus an
inconsistency between the two Acts and, to the extent of this inconsistency, statute
2 prevails over and impliedly repeals statute 1. In the Macartkys type situation there
is a conflict between Community law and an English statute, but there is no
conflict between the European Communities Aa and any other piece of legislation;
the only inconsistency is as between the Community law on sex discrimination and
the English statute. Accordingly, there is no question of the repeal of the European
Communities Act either impliedly or otherwise.'197 An important contributing
factor to this outcome is of course the generality of the terms of sections 2 and 3 of
the European Communities Act. Those provisions reflect both the separate nature
of the rules of Community law and their continuing significance for the English
legal system. But, in addition, their generality distances the actual rules of

93. [1979] 3 C.M.L.R. 44, at pp.46-47. Lord Denning re-iterated this principle in his What Next i'l the
Law (1982, at pp.296-300. Also see T. R. S. Allan, supra n.13.
94. See Garlarld v. British Rail Engineering Ltd. [1983] 2 A.C. 751, per Lord Diplock (giving the
unanimous judgment of the House), at p.77t. Also see O. Hood Phillips, "A Garland for the Lords:
Parliament and Community Law Again", (1982) 98 L.QR. 524 and T. R. S. Allan, "Parliamentary
Sovereignty and the EEC", [1982] Public Law 562.
95. Per Lord Hailsham, L.c., House of Lords Debates, 5th Series, 1972, Vol. 333, c01.1230.
96. See O. Hood Phillips, "Has the incoming tide reached the Palace of Westminster?", (I979) 95
L.QR. 167 and "High Tide in the Strand? Post 1972 Acts and Community Law", (1980) 96 L.QR. 31.
97. "Supremacy of Parliament and European Law", (1980) 96 L.QR. 511, at p.513. The cases cited in
the passage quoted are Vauxhall Estates Ltd. v. Liverpool Corporation [1932] 1 K.B. 733, Ellm Street
Estates Ltd. v. Minister of Health [1934] 1 K.B. 590, and Macarthys Ltd v. Smith, supra n.93.

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Community law from the rules of United Kingdom law thus avoiding a direct
confrontation between them and making implied repeal in the situation described
above impossible.

But is the implied repeal of the European Communities Act impossible in all
situations? Clearly there is no obstacle to its implied repeal in a situation in which
there is an inconsistency between that Act and a later Act. 98 In this connection it is
interesting to consider whether section 1 (3) of the European Communities Act
has been impliedly amended by section 6 of the European Assembly Elections Act
1978. Section 1 (3) of the 1972 Act lays down a procedure whereby Her Majesty in
Council may specify a treaty to be a Community treaty for the purposes of the
European Communities Act subject only to the Order in Council being approved
by both Houses of Parliament. Various additional treaties have been so specified
from time to time, for example the Financial Provisions Treaty of 1975 which
amended the Community's budgetary arrangements.99 Implicit in this procedure
is the rule that the making of treaties is an executive act in which Parliament plays
no role.! Section 6 of the 1978 Act introduces a constitutional novelty by stating
that no treaty which provides for any increase in the powers of the Assembly shall
be ratified by the United Kingdom unless it has been approved by an Act of
Parliament. That provision is clearly designed to limit the Crown's power of
treaty-making in an area of particular concern to the Community. It requires in
respect of a particular type of treaty prior statutory approval rather than approval
by parliamentary resolution after the treaty has been concluded. Thus there are
here two Acts which say different things about the same situation and in
accordance with the doctrine of implied repeal it must be presumed that the latter
Act prevails as a matter of United Kingdom law. It does not necessarily follow that
such constitutional change will impede the United :Kingdom's acceptance and
implementation of any future treaty which may confer additional powers on the
European Parliament. Any such treaty would require the unanimous approval of
the member states.2 Where such a treaty is in fact made then presumably the
United Kingdom Government of the day would secure the passing of the required
Act of Parliament.3 That has in fact just happened for the first time. Two of the
provisions of the Single European Act 1986 amend the EEC Treaty to give the
European Parliament the right to assent to the future accession of new members
and associate members.4 We therefore find in the European Communities

98. See Evelyn Ellis, ibid., at p.514.
99. See European Communities (Definition of Treaties) Order 1976, 5.1. 1976, No.217.

I. See Blackburn v. AUornry General [1971] 1 W.L.R. 1037, per Lord Denning, M.R., at p.1040.
2. Under the terms of EEC Treaty, art.236.
3. If such an Act was not passed then the United Kingdom would clearly have committed a breach of

EEC Treaty, art.5 by failing to take all appropriate measures to ensure fulfilment of Community
obligations. For a case in point see Case 128/78 EC Commission v. United Killgdom [1979] E.C.R. 419
(the tachograph case).

4. Arts. 8 and 9 which amend EEC Treaty, arts. 237 and 238 respectively; see European Communities
No. 12 (1986), Cmnd.9758.

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(Amendment) Act 1986, the principal aim of which is to amend the European
Communities Act 1972 in the light of the Single European Act,5 a section which
provides: "For the purpose of section 6 of the European Assembly Elections Act
1978 the Single European Act is hereby approved.,,6

The House of Lords in Garland did not expressly rule out the possibility of the
implied repeal of a rule of Community law by a later British statute. But it is
suggested that, by giving broad support for Lord Denning's constructionist
approach and given the likely nature of actual inconsistences between British
statutes and rules of Community law, judicial decisions resolving such
inconsistencies in favour of Community law are effectively guaranteed.

Conclusion
It is clear that since 1 January 1973 the United Kingdom has accepted and

participated in a form of two-tier central government with an accompanying
duality of legal orders.7 Policy-making and law-making are no longer the
exclusive concern of the United Kingdom Government and Parliament; significant
areas of policy-making and law-making have been transferred to the institutions of
the Community, with the important rider that such policy and law takes
precedence over conflicting national policy and law. In support of the political
decision to accede to the Community our Parliament has, in effect, identified the
area within which Community law will operate and within that area it has refrained
from exercising its own law-making power other than as required by Community
law. Clearly something very remarkable has happened but not, it is submitted,
something which is entirely unprecedented.

One commentator has spoken of the process of joining the European
Communities in the following terms: "Britain's accession to the European
Communities was analogous to a constitutional amendment of an unprecedented
kind, and the process followed for the decision to join was in itself a constitutional
exercise. Wholly new processes might have been used, but instead the ordinary
parliamentary legislative procedure was made to serve this unusual purpose."s
This is indeed no more than the history of constitutional change in this country
would suggest: "it has always been convenient, if at all possible, to disguise change
as continuity, even where continuity might be ambiguous.,,9 This, in turn,

5. Excluding the provisions of the Single European Act which relate to co-operation in the sphere of
foreign policy.

6. Section 3(4).
7. C[ Report of the Royal Commission on the Constitution, VoU, Cmnd.5460, para.410 and W. Wallace,

"Less than a Federation, More than a Regime: the Community as a Political System", in H. Wallace,
W. Wallace and C. Webb (Eds.), Policy Making in the European Commlmity 2nd. ed. (1983) 401, at
pp.406, 410.

8. P. Bromhead, Britain's Developing Constitution (1974), at p.213.
9. J. D. B. Mitchell, "The Sovereignty of Parliament and Community Law: The Stumbling Block

That Isn't There", (1979) 55 International Affairs 33, at p.39.

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reflects the familiar dichotomy between continuing abstract constitutional legality
and changing political constitutional reality.1O In terms of the former, Parliament
retains its absolute power to legislate on any conceivable matter; in terms of the
latter, Parliament's power is limited in accordance with "an established pattern of
commitments", II the content of which is subject to change. The factors which, as
has been argued above, ensure practical British compliance with the obligations of
membership of the Community are the necessary products of the fact of a
continuing and willing British membership. While legally nothing has changed,
constitutionally, i.e. politically, there has been a major re-allocation of legislative
power: "To this extent, and in the area occupied by Community law,
parliamentary sovereignty may be said to be in abeyance.,,12 Or, as Sir Leslie
Scarman (as he then was) has put it, British membership of the Community has
ended "in fact, if not in theory, Parliament's power on all occasions and whenever
it chooses to legislate as it alone thinks fit.,,13 Any future British legislation which
was intentionally and expressly contrary to Community law or which repealed the
European Communities Act would reflect not so much a re-assertion of the legal
sovereignty of Parliament as an exercise of the political sovereignty of the
government of the day and, consequently, a fundamental change in Britain's
relationship with the Community.

A consideration of the constitutional impact of membership of the Community
naturally prompts comparisons with the emancipation of the British Empire. The
apparent distinction between the territorial extent of legislative authority on the
one hand, and the scope of the subject matter of legislation on the other is one of
no practical significance, given the continuing and absolute nature of the legal
sovereignty of Parliament. Nor can the apparent efficacy of the legislative
measures for the emancipation of the British Empire be taken to establish
Parliament's capacity legally to limit its own powers. Such a conclusion is
fallacious since it fails to give proper weight to the long-established and prevailing
views, not least in Commonwealth countries themselves, of the extent of the legal
powers of the British Parliament. Long after Lord Sankey's famous dictum in
British Coal Corporation v. The King, 14the governments, parliaments and courts of
Canada and Australia have fully acknowledged the continuing nature of the
legislative supremacy of the British Parliament. In litigation arising out of the
patriation of the Canadian constitution, for which purpose Canada requested and

10. This dichotomy is also reflected in the title of the 1967 White Paper, Legal and Constitutional
Implications oj United Kingdom Membership oj the European Communities, Cmnd.330 I. It has also received
some judicial recognition: see Lord Denning's reference to "a constitutional point" in Macarthys Ltd. v.
Smith [1979] 3 C.M.L.R. 44 at p.47 and Sir Robert Megarry's express reservation in respect of the
European Communities Act in Manuel v. Attorney General [1983] Ch. 77, at p.86.
11. G. Watson, The British Constitution and Europe (1959), at p.65.
12. C. Turpin, British G(!lJernment and the Constitution (1985), at p.284.
13. "Law and Administration: A Change in Relationship" (1972) 50 Public Administration 253, at

p.255.
14. [1935] A.C. 500, at p.520.

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consented to the passing of the Canada Act 1982 by the United Kingdom
Parliament, the Supreme Court of Canada held that "The legal competence of
[the British] Parliament ... remains unimpaired, and it is for it alone to determine
if and how it will act.,,15 And, further, speaking of the Statute of Westminster,
1931: "whatever the Statute may import as to intra-Canadian conventional
procedures, there is nothing in it or in the proceedings leading up to it that casts
any doubt in law as to the undiminished authority of the Parliament of the United
Kingdom over the British North America Act, 1867.,,16 The recent Australia Act
1986,17 passed at the request and with the consent of Australia to achieve a
similar purpose, also proceeded on the same basis and against the background of
the acknowledgement by the High Court of Australia that "The United Kingdom
Parliament could of course repeal the Statute of Westminster. It could repeal the
Commonwealth of Australia Constitution Act.,,18 Therefore, the reason for the
effectiveness of the emancipation of Canada and Australia lies not in any formal
legal restraint on the British Parliament (for none is possible), but in the political
reality of the relationship between the United Kingdom and those countries.19

That relationship is a constitutional relationship which is based on "the acceptance
of a doctrine, almost amounting to a principle in itself, that the great
self-governing Dominions are not any longer in tutelage but are constituent units
of the British Commonwealth of Nations.,,2o Just as, constitutionally, it is out of
the question for the United Kingdom to legislate for Canada or Australia without
its request and consent, so it is equally out of the question for the United Kingdom
Parliament to invade the area occupied by Community law or otherwise legislate
contrary to it. The nature of the constitutional relationship is different in each case
but both involve the continuing exercise of political restraint on Parliament and in
each case the end result is the same. To adopt the terminology ofMr Justice Rand
of the Supreme Court of Canada, within the area occupied by Community law the

15. Reference Re Amendmmt of the COl/Stitutioll of Callada (Nos 1, 2 alld 3) (1982) 125 D.L.R. (3d) 1, at
pAl.

16. Ihid., at p.42, emphasis added. Also see Manuel v. Attorntry-General [1983] Ch.77 (Megarry, V.c.
and C.A.).

17. See I. S. Dickinson, "The Australia Act 1986 - An End to Constitutional Links between Australia
and the UK", (1986) 136 New Law Journal 401.

18. Bistriev. Rokuv (1976) 135 C.L.R. 552, at p.567 per Murphy,]. By the same token it could also
repeal the Canada Act 1982 and the Australia Act 1986.

19. It is ofinterest that in The Commonwealth v. Queensland Murphy,]. cites British membership of the
European Community as one of the factors which confirms the independence and political separation
of Australia from the United Kingdom; see (1975) 134 C.L.R. 298, at p.334.
20. The Commonwealth v. Kreglinger f5 Fernau LId. (1926) 37 C.L.R. 393, at pp.413-414 per Isaacs,].

who also cites the report of the Imperial Conference of 1926 to similar effect. More recent opinions of
the Judicial Committee in Ibra/ebbe v. The Queen [1964] A.C. 900, Bribery Commissioner v. Rallasillghe
[1965] A.C. 172, and Akar v. Attorntry-Gmeral of Sierra Leolle [1970] A.C. 853 are not relevant in this
context because they are concerned with the powers of the Parliaments of Ceylon and Sierra Leone and
not with those of the United Kingdom Parliament. On this point see Comlaekv. Cope (1974) 131 C.L.R.
432, at p.452 per Barwick, C. J..

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United Kingdom Parliament has become a "bare legislative trustee" for the
Community?l Given continuing political commitment to the Community, the
practical guarantee of our loyalty is at least as effective as in those member states
which have a written constitution.22

By means of what Lord Watson, almost 100 years ago, aptly termed "the silent
operation of constitutional principles"23 there has once again occurred "a
constitutional, not legal, abdication of sovereignty,,,24, this time in favour of the
European Community. Recent attempts to re-open this issue in the context of the
acceptance and implementation of the Single European Act are quite
misconceived.25 The crucial constitutional decision was taken in 1972, after very
careful consideration, and confirmed in 1975. The Single European Act is no
more than a logical progression of what was decided then.26 To vary Lord
Denning's sea metaphor, very much more than our feet have become wet, we are
rather in mid-channel and swimming strongly with the current.

21. I.e. Rand, "Some Aspects of Canadian Constitutionalism", (1960) 38 Canadian Bar Reviw 135,
at p.l45.
22. Sed quaere whether we now have a form of written constitution subject to judicial review exercised

by the European Court.
23. Cooper v. Stuart (1889) 14 App. Cas. 286, at p.293.
24. A. Berriedale Keith, The Dominions as Suvereign States (1938), at p.122.
25. See the parliamentary debates on the second reading of the European Communities

(Amendment) Bill: House of Commons Debates, 6th Series, 1985-86, Vol.96, cols.316-393 and House of
Lords Debates, 5th Series, 1985-86, Vo1.479,cols. 1004-1034, 1046-1088. Also see letters to The Times
on 6, 8,12,16,19,23,26 and 28 May, 1986 and R. Scruton, "May the Lords preserve us", The Times,
23 September 1986, at p.l2.
26. Cf. Lord Bethell, Home of Lords Debates, 5th Series, 1985-86, Vol. 479, cols.l061-1062.

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