EU and Parliamentary Sovereignty Flashcards
What are the 2 key Legal Principles developed by European Union Law and what do they incorporate?
- Direct Effect - from Van Gend - Individuals are able to enforce their EU rights directly in national courts and national courts are under an obligation to apply EU law
- Supremacy - from Costa v ENEL - whenever there is a conflict between national and EU law, national law is rendered inapplicable. UK courts must disapply national law conflicting with EU law
What are the 3 requirements before a Treaty provision can have direct effect?
- The provision must be clear and precise
- It must be unconditional
- Its operation must not be dependant on further action being taken by EU or national authorities
- These requirements make the provision self-executing
What did Internationale Handelsgesellschaft [1970] decide?
- Not even a fundamental rule of national constitutional law could be invoked to challenge the supremacy of directly applicable EU law
- This was restated in Simmenthal [1978]
What is Direct Applicability?
- Not to be confused with direct effect, direct applicability is the rule that regulations require no implementing of legislation within member states
- This was implemented by the TFEU followed by the Lisbon Act
Why was the UK not not constitutionally prepared to join the EEC?
- EU law contradicts Dicey’s negative limb of Parliamentary Sovereignty as it is supreme - Costa
- Dicey and Wade argued that Parliament cannot bind its successors. The ECA 1972 has been seen to significantly limit the freedom of Parliaments since
- UK courts are unable to nullify Acts of Parliament based on a higher norm but EU law expects this
- British MPs knew little of the legal implications of membership of the EEC
What does Walker note about Dicey and the ECA 1972?
-The positive limb of Parliamentary Sovereignty - Parliament can make or unmake any law it deems fit - is untouched by the ECA as it can be repealed in the same way as any other act
What was the feeling before the ECA 1972 was passed?
- The government and 2 successive Lord Chancellors did not believe that the Treaty of Rome posed any threat to UK sovereignty
- Lord Privy Seal Heath had suggested that the Treaty of Rome would limit sovereignty but his advice was not heeded
- A legal challenge was brought in Blackburn v Attorney General [1971] on the grounds that Parliament would be surrendering the sovereignty of the crown in Parliament but the case was dismissed
In what 2 ways did Denning recognise UK Parliament could abdicate its overall sovereignty?
- Transferring jurisdiction by granting independence to a colony - North America Acts - Dicey
- Transferring legislative competence over certain matters to another body i.e. the EU, NATO or the UN
- Either way it is Parliament’s choice to commission such transferrals and can (arguably) repeal the acts giving these changes effect
Which two constitutional demands appear to compete and what are the 3 ways the courts have dealt with this?
- Supremacy of EU law and the doctrine of Parliamentary Sovereignty
1. Applying the later statute and overriding Community law
2. Constructing the later statute in conformity with Community law
3. Giving effect to Community law by ‘disapplying’ the later statute
How did the courts apply later statutes to override Community law?
-In Felixstowe [1976], Denning simply used the doctrine of implied repeal to treat the Community law given effect under the ECA 1972 as part of English law and use the later national law to override Community law
What is the main approach used by UK courts to deal with conflicting EU and national law?
- The Construction Approach
1. National law is interpreted by the court according to the traditional rules of statutory construction
2. Community law is considered separately - it cannot affect the meaning of a national law
3. If the meaning of Community law is unclear, the case will be referred to the ECJ
4. If there is a conflict, Community law prevails over national law - This was decided in Macarthy’s [1979]
What was the importance of Pickstone [1989] and Litster [1990]?
- They assured the use of the purposive approach to statutory interpretation
- The court cannot stretch the words of an Act of Parliament through interpretation or construction
What is the Common law approach to statutory construction?
- Noted by Lord Diplock in Salomon [1967] - there is a prima facie presumption that Parliament does not intend to act in breach of international law
- Diplock applied this rule in Garland [1983] to Community law
- This is similar to the approach suggested by Denning’s dissent in Macarthay’s [1979]
What is wrong with the Common law approach to statutory construction?
-It appears to conflict with Van Gend as it goes against the notion of a ‘new legal order’
What occurred in Factortame I [1990]?
- The House of Lords confirmed the supremacy of EU law over national law in the areas where it has competence because the UK has acceded to the EU treaties
- This was widely viewed as an assault on Parliamentary Sovereignty
