This Paper was originally written By Catherine Kiama in 2013 for Credits in Law Skills Portfolio Unit.
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.
[1] Came into being with the Treaty on European Union 1992.
[2] Based on the Treaty of Rome 1957.
[3]UK
[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.
