EU Law in the UK (L23) Flashcards
What was said in J.H. Rayner (Mincing Lane) Ltd. V Department of Trade and Industry [1990] 2 AC 418, 500, and why was this significant?
“Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation.”
UK didn’t just sign EU treaties when it joined. Enacted European Communities Act 1972.
What is stated in the European Communities Act 1972, s2(1)?
“All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly…”
What does European Communities Act 1972, s2(4) say and why is this important?
“… any enactment passed or to be passed… shall be construed and have effect subject to the foregoing provisions of this section…”
s2(1) is one of the ‘foregoing provisions of this section’.
Any enactment ‘passed or to be passed’ is to be read subject to s2(1).
s2(1) automatically transposes into domestic law all directly affected and directly applicable EU law.
Therefore, statutes (whenever enacted) are to ‘be construed’ and to ‘have effect’ subject to the EU law thus transposed.
What is the primary legislation which is made to give effect to obligations under EU law?
ECA s2(1).
SECONDARY LEGISLATION MAY BE MADE UNDER s2(2): executive may by “order, rules, regulations or scheme” make provision “for the purpose of implementing any EU obligation of the United Kingdom, or enabling any such obligation to be implemented…”
What was the issue in the Factortame saga?
Merchant Shipping Act 1988 - dealing with problem of ‘quota-hopping’. Compatibility with EU law disputed.
Initial proceedings; preliminary reference to ECJ.
Possibility of interim interdict regarding enforcement of 1988 Act?
HL makes second preliminary reference.
Can interim relief be given? Domestic law (Crown Proceedings Act 1947) says no.
What did the ECJ have to say in Factortame Case C-213/89?
“Community law must be interpreted as meaning that a national court which, in a case before it concerning Community law, considers that the sole obstacle which precludes it from granting interim relief is a rule of national law must set aside that rule” [23].
Question returns to HL to apply the preliminary reference: R v Home Secretary, ex parte Factortame [1991] 1 AC 603.
Grants interim relief. ‘Disapplies’ relevant domestic statute.
Lord Bridge: “Some public comments on the decision of the European Court of Justice… have suggested that this was a novel and dangerous invasion by a Community institution of the sovereignty of the UK Parliament. But such comments are based on a misconception.”
What did Factortame tell us about the impact (or lack thereof) of EU law on the sovereignty of the UK Parliament?
Supremacy of EU law was already established when UK joined.
Therefore: “whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. Under the terms of the Act of 1972 it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law.”
EU law is ‘supreme’ in practice but because Parliament says so. Parliament remains sovereign.
‘Disapplication’ rather than ‘strike down’.
What did Wade say in ‘Sovereignty - Revolution or Evolution?’ (1996) LQR 568?
“Nothing in Lord Bridge’s language suggests that he regarded the issue as one of statutory construction. He takes it for granted that Parliament can ‘accept’ a limitation of its sovereignty… It is a statement which could hardly be clearer: Parliament can bind its successors. If that is not revolutionary, constitutional lawyers are Dutchmen.”
What did Craig say in ‘Sovereignty of the United Kingdom Parliament after Factortame’, (1991) 11 Yearbook of European Law 221?
Parliament is presumed not to legislate incompatibly with EU law, but can still do so explicitly.
What is the European Union Act 2011 s18 (the sovereignty clause)?
“Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act.”
Essentially a ‘notwithstanding clause’.
Restatement of domestic orthodoxy; implicit rejection of idea that EU law would apply in domestic law even in absence of 1972 Act.
What was the issue in the HS2 case?
Did the ECA 1972 impliedly repeal the Bill of Rights 1689? Leads to (obiter) remarks on relationship between EU law and domestic law.
What did Lord Reed say in the HS2 case?
“That question cannot be resolved simply by applying the doctrine developed by the Court of Justice of the supremacy of EU law, since the application of that doctrine in our law itself depends upon the 1972 Act… Nor can the issue be resolved, as was also suggested, by following the decision in R v Secretary of State for Transport, Ex p Factortame Ltd (No 2) [1991] 1 AC 603, since that case was not concerned with the compatibility with EU law of the process by which legislation is enacted in Parliament.”
What did Lords Neuberger and Mance say in the HS2 case?
“The United Kingdom has no written constitution, but we have a number of constitutional instruments. … It is, putting the point at its lowest, certainly arguable (and it is for United Kingdom law and courts to determine) that there may be fundamental principles, whether contained in other constitutional instruments or recognised at common law, of which Parliament when it enacted the European Communities Act 1972 did not either contemplate or authorise the abrogation.”
What was stated in The United Kingdom’s exit from and new partnership with the European Union, Cm 9417 (2017)?
“The sovereignty of Parliament is a fundamental principle of the UK constitution. Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that.”
