Is the UK Parliament Sovereign in light of its Membership to the EU?
By Kate Kiama -May 2012

The European Union^[1] was formed from the need to have harmony and to have a prosperous Europe after the two World Wars ravaged Europe. The desire to ensure that such devastating events should never recur manifested in the creation of the European Convention on Human Rights and other key institutions. The integration of the coal and steel industries gave rise to the European Economic Community^[2].This was a measure taken to enable communal control of commodities that could be used to fuel war. The European Union has made weighty changes in the legal, economic, political and social arena of its member states.

The United Kingdom^[3] was admitted to the EEC^[4]in January 1973.This membership nonetheless beneficial to her in terms of trading and accessing the European markets brought with it considerable challenges concerning the sovereignty of the UK parliament and the role of UK judges in interpreting domestic law especially when issues of EEC^[5] laws arose. The spirit of the EC is that all member states should surrender a degree of their sovereignty in order to give the new supra-national institutions its own authority.EC law was ratified in the UK by the European Communities Act 1972^[6].Section 2 of the Act specifies that rights and duties derived from EC provisions that have direct effect^[7] are to be given full legal effect within the UK.This position was reaffirmed in the case of Van Duyn v Home Office (1974).

Being members, is the new legal order created therefore imposed on member states? And is limiting member states sovereignty an attack on democracy or is it a practical limitation to ensure conformity within all member states? This paper will demystify the legal effects of the UK membership to the EU and specifically what this means for her sovereignty.

Under any constitution whether written or unwritten, there must be a source of ultimate authority. In written constitutions such as in the USA, the highest source of power is in the constitution. Under the unwritten British constitution, the highest source of authority streams from the United Kingdom parliament itself. The classical definition of sovereignty was offered by A V Dicey in 1885.Parliamentary sovereignty means that the UK parliament has the right to make or unmake any laws and that no person or body is recognized in English law as having a right to override or set aside parliamentary legislations. The significance of this sovereignty means that UK legislation is not superseded by principles of International law or of Natural law. Further, Acts of Parliaments never lapse and all subordinate legislation must be able to point-to where they derive their authority from; usually through a Parent Act. Parliamentary sovereignty rests upon the assumption that the judiciary is loyal to the will of the legislature and will apply Acts of Parliament effectively in courts of law.

The European Court of Justice has since the 1960s asserted that European Community law has supremacy over the laws of any member state. This opinion can be derivative from early cases such as VanGend en Loos v Nederlandse Tariefcommissie (1963^[8]), Costa v ENEL (1964^[9]), Simmenthal (1977^[10]) and Internationale Handelsgesellschaft mbH v EVST (1972^[11]).The Court of Justice has adopted the view that by becoming signatories to the EU, member states have indeed limited their own legislative competence and abilities in regard to community matters^[12]. The supreme power to legislate on such matters is in the institutions of the Union alone. The laws of the Union, Treaties, laws enacted by the Council of Ministers and those of the European Parliament together with decisions reached by the European Court are binding in totality on all member states^[13]. In the UK, all Union law derives its authority from the ECA 1972 an Act of the UK parliament^[14]. This Act[15] like any other has no special legal status within the constitution and is not immune from repeal or amendments.^[16] British judges have resulted to settle disputes over the evident conflict of EU and UK law by assuming that the UK parliament does not wish to contradict EU law.

From the European Courts perspective, it is clear that Community law should always prevail over domestic laws in the event of conflict. Domestic legislatures should therefore not enact contrary legislation to that of the Community law. The supremacy of the Community law must be respected according to the ECJ’s views as member states voluntarily “surrendered” their sovereign power^[17]. Article 10 Treaty of Rome imposes a duty on all members to comply with Community law and not hinder its applications. Further; Article 249 EC Treaty provides that regulations^[18]made under the Treaty shall be binding in entirety and directly applicable on all member states.

Blackburn v Attorney General (1971) and R v Home Secretary ex parte McWhirter (1969) aimed to challenge the idea that membership to the community would mean actual loss of parliamentary sovereignty. This in Blackburn’s view was unlawful and contrary to the very idea that no parliament could bind a future parliament. In R v Home Secretary, it was argued that joining the EC[19]  was contrary to the Bill of Rights 1969 which clearly stated that all government powers are vested in the Crown and parliament could therefore not purport to transfer those rights by means of a Treaty. In both cases, the arguments were quickly rejected.

Unquestionably, the most famous case that reveals the relationship between European law and domestic law is that of R v Secretary of State for Transport ex parte Factortame (1991). The ECJ in this case authorized the British Courts to set aside the conflicting Merchant Shipping Act of 1988, a valid law passed by the Sovereign UK parliament to give effect to EU law. The ECJ reverted to its previous decision in Simmenthal (1979) reverberating that directly applicable rules were to be entirely and homogeneously applied in all member states in accordance with the principle of superiority of European law over domestic law. In R v Secretary of State for Employment ex parte Equal Opportunities Commission (1995)^[20], the House of Lords blatantly granted a declaration to the effect that the domestic law in regard to the employment provisions were undeniably incompatible with the European law. The House of Lords decision did not go as far as to invalidate domestic law but rather limited itself to the compatibility issue. It seems that the power to rule on the invalidity of domestic laws is a matter best left to the ECJ.^[21]Various case law suggests that a UK court has the authority to grant an injunction against the crown by suspending a valid Act of Parliament. The House of Lords assertion that such incompatible national laws should be set aside if they appear to interfere with the protection of community rights clearly questions the supremacy of the UK parliament.

Article 234 EC Treaty^[22] set out the provisions for a court or tribunal of last resort to refer a question of EU law to the ECJ which requires interpretation to enhance uniformity within member states. Lord Denning in Bulmer v Bollinger (1974) laid down the guidelines[23] for English courts to apply when reference was anticipated. An additional hindrance to referrals arises from the doctrine of acte clair^[24].The Bulmer and acte clair principles can lead to serious variation in the interpretation of EU law within domestic systems. The ECJ considered the circumstances in which courts should refer a matter of law and the principle of acte clair in the CILIFIT[25] case of 1983. The purpose of Article 234 EC Treaty is to ensure that there is proper application and unvarying interpretation of EU law in all member states, hence a prevention of discrepancies occurring within member states.

Despite the fact that the ECJ is not a supreme federal court, once it makes a ruling on a matter that has been referred to it, the domestic court seeking the referral is expected to adopt the ECJ’s interpretation. It is important to note that governments of member states are liable in damages for losses their citizens may incur as a result of the state’s breach of EC law.

It is likely to contend that the UK parliament entrenched the provisions of Section 2(4) ECA 1972.In effect it bound itself and all other future parliaments contrary to the Diceyan theory. This means that the ECA 1972 has some “special constitution” status that result in the actual loss of parliamentary sovereignty as was suggested in the early cases of Blackburn and R v Home Secretary respectively.

Alternatively, it could also be argued that the Diceyan theory still holds its ground despite all arguments that may seem to critics it.It should be remembered that the United Kingdom voluntarily ceded into entering the European Community.EC law enters into UK domestic courts through the ECA 1972.In theory, the Act like any other can be repealed and amended. This is consistent with Dicey’s theory that parliament can make or unmake any law.Macarthys v Smith (1979) and Garland v British Rail Engineering Ltd (1983) illustrate that the Court of Appeal and the House of Lords respectively are of the view that in the event that parliament expressly legislates contrary to provision governed by Community law, UK judges will give effect to parliament’s intentions notwithstanding the provisions of Section 2(4) ECA 1972. Judges would simply be giving effect to the most recent expression of parliament’s wishes through the doctrine of implead repeal.

 The European Union imposes large amounts of legislation and regulation to its member states annually. This questions the sovereignty of member states in particular that of the UK.However the uniform legislation enacted by the European bodies is in line with the community objectives and to ensure conformity of laws within all member states. The House of Lords and the House of Commons have committees that scrutinize EU legislation before it is effectively adopted as domestic law. These committees review each legislation and when need arises debate the same in the UK Parliament. Through this process, the UK Parliament has reaffirmed its sovereignty despite membership to the Community and has clearly demonstrated that its parliament is sovereign over that of Strasbourg.

The actual fact that the UK is a dualist state as per its constitutionality may water down the theory that EU law is more supreme that its own national laws. The ECA 1972 like any other Act can be amended as was clearly demonstrated following the adoption of the SEA 1986. This proves that any parliament can alter or repeal the Act[26] thereby affirming the UK’s ultimate sovereignty. In conclusion, I am of the assertion that Westminster still retains its sovereignty despite the new legal order created by the EU.However; this sovereignty is more legal than political. Parliament at Westminster can legally dis-apply Community law[27] and assert its own legislation. Such an option however would not be very reasonable given the current politics that dominate Europe now.

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[1] Came into being with the Treaty on European Union 1992.

[2] Based on the Treaty of Rome 1957.

[3]UK

[4]Treaty of Rome 1957 now referred to in its amended form as the EC Treaty.

[5]Now referred to as European Union law and Community law herein.

[6] UK is a dualist state. Act created in consistency with sovereignty of parliament.

[7] After attaining full membership to the EU, most Treaty provisions became part of domestic law. This means that provisions of direct applicability can be invoked before member states domestic courts as part of domestic law without further enactment by their parliament. Ensures harmonious application of Community law throughout the legal system of all member states.

[8]Court enunciated the principle that by signing the EU Treaties, member states had created a new legal order in which individual states had willing allowed to limit their own sovereign rights.

[9] Court held that by creating a community of unlimited duration, having its own institutions and personality, the member states have limited their sovereign rights and have thus created a body of law which binds both their nationals and themselves.

[10]The ECJ found that even a fundamental provision in the written constitution of member states could not be invoked to challenge the supremacy of EC law.

[11] Ibid

[12] EC’s objectives include the following:

v  To create and maintain the internal market.

v  To create and maintain a common commercial policy with non-EC countries.

v  To preserve competition.

v  To create and maintain an economic and monetary union.

v  To work in parallel with national governments in fields such as social policy, culture, education, vocational training, public health, consumer protection, environment etc.

[13] A distinction needs to be made between the different forms of international Co-operation.Inter-governmentalOrganisations are characterised by the agreements between states to establish institutions to secure some common aim and objective. Such organisations generally lack to ability to make decisions binding on member states without their express consent. By contrastsupra-national organisations are created where member states establish institutions which have a degree of autonomy and can therefore make legally binding decisions affecting member states without their express consent: provided they are still within the authority granted to them by the treaty creating it.

[14] Lord Denning made it clear in the case of McWhirter v Attorney-General (1972) that without the ECA 1972, EC Treaty and Community legislation would have been binding on the UK in the international arena but would have no effect internally. Section 2 and 3 of the ECA 1972 help ensure that the Treaty provisions have been domesticated in the UK local Courts to ensure that the Treaty provisions can now be binding on the UK.

[15] ECA 1972

[16]Ibid. Not entrenched.

[17] There is no express Treaty reference to the controversial issue on supremacy. The Court of Justice views that supremacy is actually implied in the Treaty. Article 4 TEU (ex Article 10 EC) requires all member states to ensure fulfillment of Treaty obligations and to abstain from any measure that would jeopardize the Treaty obligations.

[18] A form of secondary legislation.

[19] Now the EU.

[20]Referred to as the EOC case.

[21]Henn and Darby v Director of Public Prosecutions (1981);Foto-Frost v Hauptzollamt Lubeck Ost (1987)

[22] Previously Article 177

[23] Firstly, the decision must be essential to enable the courts to give an effective judgment. Secondly, the interpretation of the question of law must be crucial to the case and not merely a peripheral issue. And finally, even if reference is needed, it is important to appreciate the delay involved, the expense incurred and the difficulty of the point of law and of course the burden placed on the ECJ.

[24] Concept that if a matter is so obvious to domestic courts, no reference is needed to be made to the ECJ.

[25] The Court concluded that there is no duty to refer where the question of law was irrelevant and could therefore have no effect on the outcome of the case. Further, no duty arises where the question is substantially similar to one previously answered by the ECJ as in Da Costa en Schaake NV (1963).Finally the court endorses the acte clair principle and insists that there is no duty to refer where no real doubt as to the meaning of the law exists.

[26] ECA 1972

[27] Parliament can also limit the extent of general principles of EU law. This is evident in Chapter 5 of the Protocol on the application on the Charter of Fundamental Rights.

“With respect to the Kenyan law on property in land, the colonial legacy presents a mixed bag of benefits and some not-so good outcomes.”-By Kate Kiama

The above statement requires an interpretation of the effects of the colonial rule in regards to land and property rights. This paper will attempt to discuss the impact of such rule and the consequences both positive; if any, and negative, in respect to what Kenyan law on property rights has resulted to as a product of the same.

In the early 16^th and 17^th Centuries, Britain as with many other European allies embarked on empire building. This was the infamous period of the scramble and partition of Africa.[1] Previously, where a territory was taken over by conquest, it became essentially the property of the Crown or the stronger force that won the invasion.[2]After the ‘gentleman’s agreement’ in Berlin, the colonialist partitioned Africa and apportioned somewhat equal interests to colonial European powers in the vast continent. The division failed to consider African interests and as a result a look at the Africa map today will reveal very symmetrical boundaries that divided ethnic communities into two countries; for instance the Maasai Community[3] in Tanzania and Kenya and the Iteso community[4] also in Kenya and Uganda. This division of land was clearly unlawful and out of touch with the African people’s needs, culture and heritage. As a result many tribes failed to recognize the imposed laws and for this reason conflict erupted in respect of land rights and the same continues to plague the continent more than five decades later.

The Inland Territories

The Indian Land Acquisition Act 1894 was extended to the East Africa Protectorate in 1896 and allowed for the British administration to acquire land compulsorily for the railway and for government buildings and other public purposes. The East Africa (Lands) Order in Council 1901, vested crown land in the whole of the protectorate in the Commissioner and Consul-General as trustees not for the natives but for the Crown. The impact of such legislation in essence was dispossessing the true African owners of their inherent right to their property. The Commissioner could offer certificates of occupancy valid for 99 and 999 years to Europeans wishing to take up land at a consideration of pepper-corn.[5]The Crown Land Ordinance  1915 further re-defined crown land as to include land occupied by the native tribes, and land reserved by the governor for the use and support of members of the tribe. However this right did not surprisingly allow any member of the tribe to the right to alienate their own land. The case of Wainaina versus Murito[6] is to the conclusion that the 1915 legislation converted the protectorate into a colony and as a result all native rights in land were taken away and subsequently all  land vested in the crown leaving African’s as tenants at will of the crown in the land they actually occupied.

This was the genesis of the complex mess of the Kenyan Land Law as we know it to date. The Colonial legacy destined that land rights as amongst other interests were to the benefit of white settlers only, hence the common phrase ‘the White highlands’ as in reference to the Central and Rift Valley provinces of Kenya which are the most fertile lands for agriculture and farming activities in Kenya.

The Coastal Strip

In 1698, present day Zanzibar became part of the overseas holding of Oman after Saif Bin Sultan, the Imam of Oman, defeated the Portuguese in Mombasa. The Coastal strip was accordingly recognized as a sovereign territory by the British who could therefore not claim the territory as their own. The British administration signed a lease agreement to be entitled to access the land from the Sultan. The Land Title Ordinance provided for a system of adjudication of rights over the coastal strip for individuals who made a claim to ownership of land leased by the Sultanate  prior to 14^th December 1895.The Land Registration Court could issue a certificate of ownership if the claim succeed; valid as against the whole world. The ordinance also provided that land in the coastal strip which no claim had been made or allowed was deemed as Crown land ,thus ascertaining the Crown’s claim to radical title to land. This is majorly the reason how many coastal residence were disposed of the right to ownership of land.

The Registration Systems

The Registration of Documents Act 1902 allowed for the registration of deeds and all documents pertaining to land in relation to various isolated transactions. The Act was generally only applied to the normal practices of the colonialists in the discovered lands. The Land titles Act 1908 established a land registration court to ascertain who had individual title to land. This provision was applied in Malindi, Mombasa, Tana River District, the Sultanate of Witu and the Lamu Archipelago between 1909 and 1913.The application of the latter Act was only in regards to the coastal strip areas and hence only able to ascertain title to a selected minority group of African’s under the control of the Sultan. The Government Land Act 1915 was enacted to enable the alienation of crown lands. It in essence dispossessed African inhabitants of their land whilst introducing the English System of conveyancing by registering deeds to European settlers. The GLA deals with government grants prior to 1920 whether leasehold or freehold. The register under the GLA is modeled under the Land Title Act that is its system of registration of documents. Under this system it is necessary to trace title backwards up to the government grant. The Torrens system of title was subsequently introduced by the Registration of Title Act 1919.The RDA (1902), LTA (1908), GLA (1915) and RTA (1919) all championed for the rights of white settlers to the exclusion of African and Indian inhabitants.[7] The Registered Land Act enacted in 1963 was the first legislation to recognize claims by Africans under customary law and enabled the adjudication and subsequent registration of such rights. This was an important legislation passed at the epitome of pressure to liberate Africa and for a mounting pressure for African states towards attaining Self-Independence.

Pros and Cons of the Registration systems

Prior to the colonial legacy, granted land was held communally by various communities and ethnic groups. Introduction of several of the registration systems incorporated for the first time a formal system of recording various rights and interests in land through either a deed or title system. The major advancement of the Registered Land Act was to consolidate all the land in Kenya through the process of conversion and registration. Registration allowed for individual title to land previously held under customary law. The chief advantage of this is that individuals can now own property and property rights after consideration to the exclusion of others. The shortcoming of individual title has however resulted in subdivision of small portions of land in various smaller fragments with poor control and regulations from government. This has results in poor planning, lousy development and corruption and to some degree the destruction of the economic base of communities that need communal land rights such as nomads and pastoralists to sustain their way of life.

The Registration system has brought with it several complexities and technicalities and as a result of the multiple systems; it has left the envisioned register system in disarray leaving it quite prone to corruption as it has several loopholes and is difficult to comprehend and engage with. The systems have perennially failed to correct the injustices of dispossessed land right owner’s claim to land as it carries on with the assumption that present occupants are the true owners. The system inherited by the Kenyan government continued the same injustices and it seems to be a story of the same forest different monkeys in regards to the roles of the power holders and their relation with the people and the land. The Kenyan Constitution of 1963, section 205, was to the effect that all land formerly belonging to the British Crown (Crown Lands) was transferred to the President of Kenya on behalf of the Government of Kenya, by the Crown Land Ordinances of 1902 and 1915.The English system imposed on Kenya through the British system and now the Kenyan government, gave rise to various communities being regarded as squatters in their own land due to the extensive definition of the term crown and government land. The Ogiek community are the first to come to mind. Between 1969 and the 1990s, the government established Lake Nakuru and Mauche Settlement Schemes, with the aim of settling the landless Kenyans including the Ogiek community who had been dispossessed of their land. However, this was never the case, for those settled were senior civil servants, politicians and businessmen.[8]

The Land Adjudication Act[9] which aims to redress the issue of predisposed land allows for the claims of adjudication of land which may result in the award of titles. The title granted will be issued under RLA and is guaranteed by the state. Anyone who suffers loss by reason of mistake is to be indemnified by the state. The general rule under the RLA is that the proprietor’s title is unimpeachable except in the case subsequent registration which can be impeached on the grounds of fraud and mistake. The major strength or shortfall of the act, depending on where you are standing on the fence is that the first registration cannot be questioned under the Act.

Conclusion

Land issues still remain a very volatile issue in present day Kenya; the same can be seen as a direct result of the colonial injustices and especially the disposition of land rights. Land is inextricably linked to various Kenyan cultures and as a result remains the major cause of dispute and conflict between communities in both inland Kenya and around her borders.  The registration systems were aimed at registering various rights and interest in land but were introduced with the colonialist and white settlers in mind. This therefore offered minimal if any protection towards the African people. With the colonialist departure, a young democratic government took over the sins of their previous masters and attempted to address the land concerns by transferring collective land to be held by various government officials in the then federal system. This unfortunately resulted in the same sins if not worse of the colonialists.

The Constitution of Kenya 2010 for the first time links land and environmental issues in the constitution. Land is recognized as a common heritage and is offered better protection. The ambitious articles found in Chapter 9 aim to offer redress to  land rights issues  while acknowledging historical injustices with an  aim of progressive realization of the right for each Kenyan to be able to access land.

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[1] The Scramble for Africa (also known as the Race for Africa or Partition of Africa) was the invasion, occupation, colonization, and annexation of African territory by European powers during the New Imperialism (1870–1914) period, between 1881 and 1914.

[2] Calvin’s Case (1572) Eng.R .64 (1572-1616) 7 Co.Rep. 1a,77  E.R 377

[3] The Maasai territory reached its largest size in the mid-19th century, and covered almost all of the Great Rift Valley and adjacent lands from Mount Marsabit in the north to Dodoma in the south. The Nilotic group is now found in Northern Tanzania and in various parts of Kenya.

[4] The Teso (or Iteso, people of Teso) are an ethnic group of Nilots who currently reside in Eastern Uganda and in Western Kenya.

[5] The Legal Origins of Colonial Power in Kenya –Chapter 1

[6] (1923) 9 (2) K.L.R 102

[7] Land Law and Conveyancing in Kenya P L Onalo Part 2 Chapter 9 page 175

[8] Ogiek People v. District Commissioner Case No. 238/1999 (2000.03.23) (Indigenous Rights to Tinet Forest) and Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, 276/2003

[9] Chapter 284,