Parl Sov and the EU Flashcards
what has UK’s membership of the EU challenged
the orthodox view of parl sov- membership has been seen as one of the greatest threats to parl sov
The effect of the ECA on sov
The ECA brought EU laws into UK law and allowed EU law to take supremacy- this is binding on all member states
Initially there was uncertainty to the application of EU law as seen in which cases
1) Costa v ENEL- European law superior
2) Simmental- held that domestic law was supreme
What is the constitutional issue with the supremacy of EU law
it undermines parl sov- thus if we follow parl sov if a subsequent act of parl is passed it must be followed not EU law
Two further cases illustrating the confusion of the application of EU law
1) Felixstowe Dock and Railway Co v British Dock Board- Denning refused to obey EU law if a more recent Act of Westminster was applicable
2) Macarthy Ltd v Smith: Denning became more accepting of EU law- Eu law should apply unless an Act of Parl expressly contradicts it; but there should be no assumption that parl intended to contradict EU law
What was the issue to be resolved in Factotame
Involved a provision of the merchant fishing acting which put in place a national requirement regarding fishing quotas. Factor tame was a Spanish company who brought JR action to gain an injunction on the basis that the provision was discriminatory and contrary to EU law
What was held in Factortame No 1
the HoL held that the CPA meant that an injunction could not be granted against the crown, however granted interim relief while the ECJ decided on the substantial issue on whether the provision was lawful.
The ECJ held that the domestic court should misapply the rule and give full effect to EU law even if this was contrary to domestic law
What is the decisive judgement of Lord Bridge in Factortame No 2
Bridge held that Eu law has always taken supremacy and a national court should always misapply a rule which is in conflict with EU law- and that EU law is directly enforceable.
‘parl voluntarily limited its sovereignty for the benefits of membership of the EU’
Which cases have since confirmed Factortame
R v SS employment, ex p Equal Opportunities Commission
Thorburn v Sunderland CC- ECA was a constitutional statue which took hierarchy of statue- this cannot be impliedly repealed by a normal statute
What is the view of wade regarding the judgement in factor tame
revolutionary view of wade-
revolutionary that the orthodox view of parl sov ahas been so easily undermined
However, many are not shocked that this is the view taken what are the two approached
1) functional view- EU would not function without supremacy
2) intentional view- Parl by enacting ECA S 2(4) expressly states that supremacy will be given- thus full intention of parl
What is the revolutionary view
Craig- UK’s membership is evolutionary- the courts must give effect to legal and political change
Why can the original view of parl still be preserved
Parl enacted the ECA giving effect the EU law therefore have power to repeal it at any given time
Effect of Brexit on EU supremacy
The great repeal bill- repeal ECA and end applicability of EU law - thus parl will regain sov and return to orthodox view
What did Theresa May say regarding Sov and Brexit
the Bill means that the UK will be an independent sovereign nation
