Oliver Garner: Conditional Primacy of EU Law: The United Kingdom Supreme Court’s Own “Solange (so long as)” Doctrine?

oliver-garnerIn circumstances of “normal” membership of the European Union, the UK Supreme Court’s dicta in the Miller judgment that EU law is an “independent and overriding source of domestic law” [Paragraph 65] may well have caused a constitutional storm. In the current unprecedented tempest of Brexit, however, Lord Neuberger’s announcement of this statement passed as little more than a side-wind. This short post will briefly turn the magnifying glass on this judicial formulation, which will be labelled the “conditional primacy” of EU law within the United Kingdom’s domestic constitutional order.

The majority’s statement on the status of EU law can be read as a ringing endorsement of the Court of Justice of the European Union’s claims that, in cases of conflict between EU law norms and domestic law norms, the former must take precedence (Costa v. ENEL). Indeed, the Supreme Court even refers to the two labels which have been attributed to this doctrine: “primacy” of EU law at Paragraph 66, and “supremacy” at Paragraph 81.

Therefore, in the twilight of the United Kingdom’s membership of the European Union, has the Supreme Court finally accepted Sir William Wade’s argument that a “constitutional revolution” occurred in 1973 by which the EU institutions rather than Parliament become sovereign? Not quite. For the majority judgment provides a crucial qualification to the supreme status of the source of EU law: “Of course, consistently with the principle of Parliamentary Sovereignty, this unprecedented state of affairs will only last so long as Parliament wishes: the 1972 Act can be repealed like any other statute” (Paragraph 61; emphasis added).

This “so long as” formulation, repeated 7 more times from Paragraphs 60-68, bears a constitutionally familiar resemblance to the German Constitutional Court’s famous “Solange” doctrine whereby EU law is only binding domestically so long as it complies with substantive provisions of the German Basic Law. By predicating the status of the source of EU law on the continuing force of the European Communities Act 1972, the Supreme Court manages an impressive compromise: although the individual norms of the source of EU law currently take precedence in the domestic legal order, the supremacy of the source itself of EU law could never have the same ostensibly unconditional and absolute status as the source of parliamentary legislation.

The Supreme Court’s own “Solange” doctrine may well become a footnote in the legal history of the United Kingdom’s membership of the European Union. However, beyond the borders of the UK legal order, the Supreme Court’s reconciliation of two apparently fundamentally conflicting principles could well prove to be a source of inspiration for the courts of the remaining EU Member States in their continuing constitutional challenges to square the supremacy of EU law with internal national sovereignty.

Oliver Garner, European University Institute

(Suggested citation: O. Garner, ‘Conditional Primacy of EU Law: The United Kingdom Supreme Court’s Own “Solange (so long as)” Doctrine?’, U.K. Const. L. Blog (31st Jan 2017) (available at https://ukconstitutionallaw.org/))